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Seanad Éireann debate -
Thursday, 24 Apr 1975

Vol. 80 No. 5

Criminal Law (Jurisdiction) Bill, 1975: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

This Bill is designed primarily to deal with the fugitive criminal who is able to avoid being extradited by successfully claiming the political exemption which the extradition process allows. It has its genesis in the Sunningdale Conference of late 1973 when all parties there representing all shades of responsible constitutional political opinion in this island agreed on the dire necessity for an answer to the problem. I am glad that that consensus on the need to solve the problem of the fugitive offender is reflected by all parties in this Parliament though we may differ on the means proposed.

That consensus is shared here because I feel that there is well nigh universal embarrassment in this country at the predicament in which our judges find themselves, being constrained as they are in these extradition applications to release persons accused of the most serious crimes. This widespread embarrassment is compounded by the knowledge that the release of these fugitives is a matter of grave scandal in Northern Ireland where our fellow-Irishmen have suffered so much in their persons and properties at the hands of these people. In addition there is widespread unease here that people of such a character should seek to join our community. There is, I think, an unspoken feeling or a latent mood in this country that wants all the sanctions of the law imposed on these people. There is a growing intolerance of and impatience with their philosophies and activities. There is a great yearning for peace and one way we here in Parliament can respond to that yearning and encourage it is to use this debate to demonstrate our unequivocal abhorrence of violence and to articulate our desire to see an end to it.

As I say, we may differ in our attitudes to the means proposed by this Bill to solve the problem of the fugitive criminal, but I hope all who speak in the debate will be careful, if they do not approve of the mechanics proposed by the Bill, nevertheless to give their full approval to what it seeks to do—that is, to bring to justice some at least of those who have inflicted so much horror on our Northern countrymen over the past years. By doing so we can show to all the people of Northern Ireland that we are one with them in our detestation of terrorism.

I have said that this Bill had its beginnings at Sunningdale. While the problem was recognised there, it was agreed that its solution was a complex matter and a commission of eminent judges and jurists was set up to devise a solution that would take account of all the complexities but hopefully would be effective in its accomplishments. The possible solutions to the problem which had been thrown up by the conference and which were to be examined by this commission were: the amendment of the existing extradition legislation so as to remove the political exemption; the creation of a common law enforcement area in which an all-Ireland court would have jurisdiction; and the extension of the jurisdiction of domestic courts so that they could try offences committed outside their jurisdictions.

The Law Enforcement Commission agreed that the all-Ireland court method did not offer a practical immediate solution to the problems. The contrary may be argued in this debate and, if so, I look forward to hearing an assessment of the feasibility of this solution in the contemporary political context. The commission were evenly divided on the extradition method and consequently made no agreed recommendations on that method. However they agreed that there were no legal objections to the validity of the exercise of extra-territorial jurisdiction by domestic courts supplemented by a procedure for taking evidence outside the State or Northern Ireland, as the case might be. This procedure for taking evidence is one of the matters which has given rise to criticism of this Bill on the part of the Opposition and I will be dealing with this in more detail later in my speech.

The constitutionality of the Bill has been impugned by the Opposition spokesmen. I look forward during the debate to hearing the reasons, which will necessarily be technical and legal, for the Opposition's view in this regard. Our advice is strongly that the Bill is constitutional for, of course, if it were otherwise, the measure would not have been introduced.

The Government, naturally, are anxious that the Bill, like any other piece of legislation passed by the Oireachtas, would stand up constitutionally. Because of the objectives of the Bill it is important that its constitutionality be tested, if tested it is to be, as soon as possible, and the Government would see much merit in a reference to the Supreme Court prior to enactment, provided substantial arguments to justify the claim of unconstitutionality are adduced during this debate. However, the reference of a Bill to the Supreme Court is a matter for the President, after consultation with the Council of State. I would like at this stage to deal with the concept of extra-territoriality. There is nothing novel or extraordinary in this concept. It has already been adopted in our legal system. It is not prohibited in international law and has been a feature for a considerable time of the legal systems of the civil law countries.

In our legislation there are plenty of precedents for the assumption of extra-territorial criminal jurisdiction. We have the Foyle Fisheries Act, 1952; the Offences against the Person Act, 1861; section 38 of the Extradition Act, 1965; the Air Navigation and Transport Act, 1973; and the Geneva Conventions Act, 1962.

In spite of these precedents and its long-standing acceptance in civil law and in international law it remains a little known concept here, even among lawyers, and I propose therefore to deal with it in some detail.

The claim in international law to jurisdiction over acts committed abroad either by one's own nationals or by persons, irrespective of nationality, is quite different from a claim to exercise jurisdiction over areas and territories other than one's own. Indeed, if this were not so, the well-established notion of the international crime or of the criminality of acts committed outside the jurisdiction would have no place in international law. It is important to note that, though our Constitution in Article 2 specifies the national territory as the whole island, Article 3, while preserving the right to exercise jurisdiction over the whole of that territory, then says that the laws enacted by our Parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect. The language used in these two Articles is of fundamental importance in the context of what the Bill seeks to do. There is nowhere in these Articles, read together, any restriction on the creation of extra-territorial jurisdiction over the activities of Irish or non-Irish nationals abroad. Indeed, it would be strange if there were.

Piracy on the high seas has, for example, long been considered an international offence that may be tried in the courts of any jurisdiction. The same is now true in respect of air piracy in all those countries that have ratified, as we have, the 1970 Convention of the Hague for the Suppression of the Unlawful Seizure of Aircraft—set out in the Second Schedule to the Air Navigation and Transport Act, 1973. Although it was not necessary for the purposes of the convention, section 11 of this Act —which creates the offence of unlawful seizure of aircraft—apples to an act committed on any aircraft where the act is that of an Irish citizen or of a person habitually resident in the State or the aircraft is an Irish-controlled aircraft. The convention itself applies only if the place of take-off or the place of actual landing is situated outside the territory of the State of registration, and it is immaterial whether the aircraft is engaged on an international or a domestic flight. Accordingly, the convention does not cover the hijacking of an aircraft flying on a flight between London and Edinburgh which actually lands in Belfast. However, section 11 of the 1973 Act does apply if, for instance, the actual hijacking is committed by an Irish citizen or a person habitually resident here.

I mention section 11 of the Air Navigation and Transport Act, 1973, because it is a modern Act enacted by this very Parliament and also because an offence under that section is one of the offences specified in the Schedule to the present Bill. Another example of an extra-territorial offence is murder committed abroad by an Irish citizen. This is because of section 9 of the Offences Against Person Act, 1861, as recently adapted. This provision will, by the way, be additional to the provision in the Bill making murder committed in Belfast an offence under our law, irrespective of the nationality of the offender. A further example of extra-territorial jurisdiction is to be found in section 3 of the Explosive Substances Act, 1883, which deals with preparatory acts and conspiracies to cause explosions and possession of explosives with intent. It is proposed in section 4 of the Bill to re-enact this section in modern form and in addition to extend the ambit of the substantive offence—under section 2 of the 1883 Act—of causing an explosion so as to cover explosions caused abroad by Irish citizens. I shall deal with section 4 of the Bill in more detail later on.

I have already mentioned that the taking of extra-territorial jurisdiction is not without precedent in countries other than common law countries— for example, France, Germany, Norway and Austria. Let us look at the law in France and Germany, two of our partners in the Common Market.

The extra-territorial application of French criminal law is provided for in the Code of Criminal Procedure, Book IV, Chapter X, articles 689 to 696. A French citizen who commits when abroad serious offences may be tried and dealt with by the French courts. Serious offences are classified by French law not by their nature but by the punishment they attract. Broadly speaking any offence committed abroad by a French citizen which is punishable by imprisonment for not more than five years can be prosecuted in France, provided the offence is punishable by the law of the place of commission. In the case of more serious offences, this restriction does not apply. Moreover, a foreigner who, when abroad, commits or is an accomplice to an offence against the security of the French state or involving counterfeiting the state seal or national currency may be tried and dealt with according to French law if he is arrested in France or the Government obtains his extradition.

Under the criminal code of the Federal Republic of Germany, German criminal law applies to an act committed by a German national irrespective of whether he commits it in Germany or abroad. However, German criminal law does not, with a limited exception, apply to an act committed abroad which is not punishable according to the law of the place of commission. German criminal law also applies to an offence committed by a foreigner abroad if it is punishable according to the law of the place of commission and if the offence is directed against the German people or against a German national or the offender is found in Germany and is not extradited. Irrespective of the law of the place of commission, German criminal law applies to certain serious offences committed by a foreigner abroad, such as treason, offences concerning explosives, traffic in children or women, unauthorised distribution of narcotics and offences committed against the holder of a German public office or a German soldier during the performance of their duties or in relation to their duties. Finally, irrespective of the place of commission, German criminal law applies to acts committed on board German ships or aircraft. The rules as to the application of German criminal law are to be found in articles 3, 4 and 5 of the criminal code.

The taking of extra-territorial jurisdiction can be justified in international law upon several generally recognised principles, such as the protective principle, the passive personality principle, the nationality principle and the universality principle. As from various comments on the proposals in the Bill it appears to me that sufficient attention has not been paid to these principles, I feel I ought to elaborate somewhat on them.

At one time it used to be argued by what I may describe as Anglo-American jurists that the state within which a crime was committed was the only one that could assume jurisdiction to try it. This was the territorial principle and was said to be the principle that distinguished the Anglo-American conception of jurisdiction from that which prevails in countries which follow the traditions of Roman Law. However in time the strongest supporters of territoriality, England and the United States, had to abandon the principle or at least to modify it considerably.

It is at the very basis of the sovereignty of a state that it must be able to guard itself and punish activities for breaches of its criminal law no matter where committed that can affect its own security. This is the security principle, to which is allied the protective principle, which allows a state to punish any person for infractions of its criminal law when the effects of these infractions will be or are calculated to be felt within the state, no matter where or by whom committed. To quote from a celebrated United States case, which declared that the protective principle is recognised in international law: "The concept of essential sovereignty of a free nation clearly requires the existence and recognition of an inherent power in the State to protect itself from destruction".

It is now no longer doubted that a state may in exercising its sovereignty punish its nationals for breaches abroad of its criminal law to such extent and in such manner as it may deem proper. This is the nationality or active personality principle and is also derived from the concept of sovereignty. Moreover, it is generally recognised that the protection of his own state which a citizen carries with him abroad imposes on him a duty to refrain from activity contrary to the criminal law of that state. Generally, of course, the act, except where it involves the security of his own state, must be contrary to the criminal law of the place where it is committed.

A national abroad may, therefore, be subject to two jurisdictions and two different criminal laws. Thus the nationality principle on which extra-territorial criminal jurisdiction may be founded is not the same as the rule in international private law under which a person for certain purposes carries his national or personal law with him wherever he goes. Where a person's capacity to marry or to make a will abroad, for example, is governed by his own personal or national law, or where a person's national law governs his matrimonial property regime, or where he submits his succession to his own national law, he or his property is subject to one law only, whereas, under the nationality principle in the case of criminal jurisdiction, he is subject to two laws, both the lex patriae and the lex loci delicti.

In addition to the active personality principle in international law, there is also the passive personality principle, which is also akin to the nationality principle and may, indeed be said to derive from it. As a state in exercise of its sovereignty may protect its citizens abroad, some states will prosecute any person for infractions of the criminal law committed against one of their nationals.

Finally, there is the universality principle which allows for the punishment of certain grave offences that offend the conscience of mankind. These are such offences as murder, the use of explosives, trading in drugs, trafficking in women and children, piracy jur gentium, hijacking of aircraft, breaches of the 1949 Geneva Conventions on the protection of sick and wounded combatants, prisoners of war and civilian enemy aliens in time of war and so where international policy clearly justifies universal suppression.

I have shown that the territorial concept under which a state may punish criminal activity only where it takes place within its own territory is not regarded in international law as anything like an all-embracing one. As was stated in the case of The Lotus, which came before the Permanent Court of International Justice (Series A. No. 10 (1927):

The territoriality of criminal law ... is not an absolute principle of international law and by no means coincides with territorial sovereignty.

Territoriality has certainly not been accepted as an absolute in our criminal law as is demonstrated in the enactments of the Oireachtas such as the Foyle Fisheries Act, 1952; section 38 of the Extradition Act 1965, which implements the requirement in the European Extradition Convention for the prosecution of offences committed abroad by nationals of the requested state not liable to extradition, the Geneva Conventions Act 1962 and section 11 of the Air Navigation and Transport Act 1973, all of which are referred to in the footnote to paragraphs 20 of the Law Enforcement Commission Report. Except for the 1973 Act, every one of these statutes was enacted when the present Opposition were in office. As far as concerns the 1973 Act, the detailed proposals for the Bill of that Act were approved by the previous Government, and no objection was made to its provisions on constitutional grounds either when the Bill or the Act was before the Dáil or when it was before this House.

Article 29 of the Constitution provides in section 3 that Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other states. The Law Enforcement Commission in paragraph 20 of their report state in reference to the taking of extra-territorial jurisdiction that:

The jurisdiction can be justified in international law on several generally recognised principles.

If Articles 2 and 3 of the Constitution prevent us from assuming jurisdiction over acts committed outside the State, it is difficult to see how we could have ratified a number of international conventions that we have ratified—and implemented in our municipal law— such as the Geneva Red Cross Conventions of 1949, the European Convention on Extradition of 1957 and the Hague Convention on Unlawful Seizure of Aircraft of 1970.

Before leaving the question of extra-territorial jurisdiction and international law I would ask those who oppose the Bill to bear in mind that we are dealing with crimes committed in Ireland and against Irish people. It is not as if the Bill provided that our courts should have jurisdiction over crimes committed in a country a thousand miles away. Even if the rules of international law, strictly construed, would prevent us—which they do not—from instituting a system of mutual law enforcement similar to that in the Bill between the State and a country in a distant part of the world, it is surely unreal to argue that those rules should apply in exactly the same way as between the State and Northern Ireland. To treat Northern Ireland as part of a foreign state for present purposes seems to me not only artificial but inconsistent with the history of co-operation between the two parts of Ireland which has been practised down through the years in so many respects, and inconsistent too with our tradition of regarding Ireland, in spite of the Border, as one country and one people.

The Criminal Law (Jurisdiction) Bill that we have now before us is primarily designed to introduce extra-territoriality in the field of criminal law as between ourselves and Northern Ireland. The Bill proposes (1) to extend our criminal law and criminal jurisdiction so that they will cover a number of very serious offences committed in Northern Ireland by any person, irrespective of his nationality, and (2) to make the new jurisdiction operate effectively by supplementing the extra-territorial method with a satisfactory procedure that will contain adequate protection for accused persons. In addition to this, we are availing ourselves of this opportunity to propose several reforms in the ordinary substantive criminal law concerning explosives, firearms, robbery, burglary and hijacking of vehicles. These are reforms that I, as Minister for Justice, would in any event have been recommending fairly soon as desirable law reforms in their own right, and I hope that they will be discussed on that basis.

I will summarise now the principal provisions of the Bill and in doing so I will deal with certain legal objections that have been raised to some of these provisions in addition to the main objection based on Articles 2 and 3 of the Constitution, which I have already discussed.

Many of the provisions in the Bill are admittedly complicated, but this is inevitable having regard to the subject matter and to the structure of the criminal law generally. For this reason the explanatory memorandum goes into a fair amount of detail, and I think it would be advisable to have the memorandum at hand to refer to, if necessary, when considering some of the more complicated provisions of the Bill. At this stage I do not propose to go into great detail on each of the provisions, as there will, I hope, be ample opportunity to examine the Bill section by section later on.

Section 2 is the principal provision of the Bill. Its purpose is to secure that any act done in Northern Ireland that, if done in the State, would be one of the offences specified in the Schedule to the Bill will be an offence under the law of the State. The offender will be punishable as if he had done the act in the State. In other words, the offences will be made extra-territorial offences. This purpose is secured by subsection (1). The other subsections deal with participation in an offence such as aiding and abetting, being accessory before the fact and so on. If those provisions seem complicated, the reason is that the Bill has to take account of the case of being an accomplice in the State in respect of an offence committed in the North, that of being an accomplice in the North in respect of an offence committed in the North and that of being an accomplice in the North in respect of an offence committed in the State. It is also necessary to provide for the inchoate offences of attempting, conspiring and inciting.

Another reason for the complications of the section is that the Bill does not propose to make any of the offences, if committed in Northern Ireland, felonies, even though some of the offences would be felonies if committed in the State. The division of offences into felonies and misdemeanours is an archaic distinction, which, I trust, will before long be abolished by other legislation. For the present, the fact that an offence is classified as a felony has some important consequences. One of these is that a person who assists a person guilty of felony to evade apprehension or prosecution is guilty of being accessory after the fact to the felony. Subsections (4) to (8) of section 2 provide for the punishment of a person who gives this kind of assistance to a person guilty of an extra-territorial offence. The provisions of the subsections I have mentioned take account of the fact that the principal offence or the giving of the assistance, or both, may have taken place either in the State or in Northern Ireland.

Section 3 makes it an offence for a person charged with or convicted of an offence under the law of Northern Ireland consisting of conduct of the kinds to which section 2 applies, whether committed in the State or in Northern Ireland, to escape from custody in Northern Ireland. The section also makes it an offence for a person to escape from custody in Northern Ireland when he has been taken there in order to be present at the taking of evidence on commission for the purpose of his trial in the State under the procedure provided for by section 11, to which I shall refer later.

The maximum penalties for the offences of escaping will be seven years' imprisonment. The section in effect reinforces the provisions of secvicted of an extra-territorial offence, of escaping from custody in the North is confined to escapes from custody where the offender is in custody as a result of being charged with or convcted of an extra-terrtorial offence, whether committed in the North or here, or an offence ancillary to an extra-territorial offence. The section does not apply to escape from internment and the Bill has nothing whatever to do with such an escape.

Sections 4 to 10 of the Bill propose amendments to the substantive criminal law relating to certain acts involving violence or the possibility of violence, and they are particularly relevant to the situation in Ireland. All the offences in question except ordinary burglary under section 6 of the Bill are included in the Schedule to the Bill.

Section 4 is essentially a modernisation and extension of the offence under section 2 of the Explosive Substances Act, 1883 of causing an explosion and of the offence under section 3 of that Act consisting, to state it shortly, of planning to cause an explosion. So far as Irish law is concerned the offence under section 2 of causing an explosion applies, as with offences generally, to any person, whether an Irish citizen or not, who causes an explosion in the State. The position as to the preparatory offence under section 3 is more complicated. That section, in its present form, is inappropriate for the State, because it is expressed to apply to things done by any person in the British dominions, and to things done by British subjects elsewhere, for the purpose of causing an explosion in the United Kingdom. Section 4 of the Bill proposes to replace sections 2 and 3 of the 1883 Act with two new sections. The new section 2 will still apply to any person, whether an Irish citizen or not, who causes an explosion in the State, but it will also apply to any Irish citizen who causes an explosion outside the State. The new section 3 will apply to the same kinds of preparatory acts as at present but to such acts done by any person in the State, or by an Irish citizen outside the State, for the purpose of causing an explosion anywhere. In other words, the Bill adapts section 3 of the 1883 Act by substituting Irish citizens for British subjects and substituting the State for the British dominions, but it does not follow section 3 of the 1883 Act in limiting the offence to where the explosion is planned to take place in any particular area. That is to say, it does not substitute a reference to the State for the reference to the United Kingdom. It seems to the Government that, having regard to the seriousness of any offence involving the use of explosives and in particular to the proposed requirements as to the nationality of the offender, it is right that the offences under the two sections of the 1883 Act should apply wherever the explosion takes place, or is to take place, as the case may be.

Section 5 replaces the offences of robbery and aggravated robbery with a new and simpler offence of robbery. The change from the existing law is not great, but there will be the advantage that the definition of robbery will be found in the statute instead of depending on case law. In future there will be a single offence of robbery, punishable with imprisonment for life, instead of an offence of simple robbery punishable with 14 years' imprisonment and offences of aggravated robbery punishable with imprisonment for life. The present distinctions are an unnecessary complication. They also involve the anomaly that, whereas a person who commits robbery when accompanied by another person is liable for life imprisonment, a person who robs a victim by threatening to kill him on the spot is liable only to 14 years' imprisonment. There will also be the advantage that the new offence will be similar to the offence of robbery under the reformed theft law of Northern Ireland.

Sections 6 and 7 replace the present offence of burglary and the other offences involving breaking and entering buildings with a general offence of burglary, punishable with 14 years' imprisonment, and an offence of aggravated burglary, punishable with life imprisonment. The existing offences are extremely complicated. For instance, distinctions are drawn according to the kind of building entered, whether the entry is or is not by breaking, whether the offence takes place by day or by night and so on. The maximum penalties for the existing offences vary between imprisonment for seven years and imprisonment for life. Section 6 of the Bill creates a new offence of burglary. Stated shortly, this will consist of entering a building of any kind as a trespasser with the intention of stealing or committing any of certain other offences in it. The offence will also apply to stealing or committing any of these offences in the building after having entered it as a trespasser.

Section 7 creates an offence of aggravated burglary, consisting of burglary when having with one a firearm or imitation firearm, a weapon of offence or an explosive. I have mentioned that the maximum penalty for ordinary burglary will be 14 years' imprisonment and that for aggravated burglary will be life imprisonment. The effect in future will be that in some cases the offender will be punishable more severely than for similar conduct under the present law and in other cases less severely. Aggravated burglary is included in the Schedule to the Bill, but ordinary burglary is not.

Sections 8 and 9 are intended to strengthen the law as to possession of firearms by creating two new offences. Section 8 makes it an offence for a person to have a firearm or ammunition in his possession or under his control in such circumstances as to give rise to a reasonable inference that his purpose is not a lawful one; but a person will of course not be guilty if his purpose is in fact lawful. The maximum penalty will be five years' imprisonment. Section 9 makes it an offence for a person to have a firearm or imitation firearm with him with intent to commit an indictable offence or to resist or prevent the arrest of himself or another person. The maximum penalty will be ten years' imprisonment. The offences are included in the Schedule.

Section 10 creates a new offence of unlawful seizure of a vehicle by force or a threat of force or by any other form of intimidation. The offence will extend to otherwise interfering with the control of a vehicle or compelling or inducing some other person to use a vehicle for an unlawful purpose. The maximum penalty will be 15 years' imprisonment. One has only to remember the uses to which vehicles seized in these ways have been put in Ireland to see how necessary it is to strengthen the law by creating this offence and making it punishable with so high a maximum penalty. The offence is similar to that of unlawful seizure of aircraft under section 11 of the Air Navigation and Transport Act, 1973, but the maximum penalty for the latter offence is imprisonment for life. There is at present no corresponding offence under the law of Northern Ireland, but the corresponding Bill now before the British Parliament proposes to create an offence similar to that under section 10. The offence under section 10 is included in the Schedule to the Bill.

Sections 11 to 13 give effect to the scheme recommended by the Law Enforcement Commission that a court in one part of Ireland trying an extra-territorial offence committed in the other part should be able to secure the assistance of the High Court in the latter part to obtain evidence on commission there for the purpose of the trial. This will be an innovation, for the general rule is that all the evidence at a criminal trial must be given orally before the court, though, as pointed out in a recent Supreme Court decision, a statute may provide otherwise. I shall be referring to this decision later.

The proposition that the courts in each part of Ireland should be able to try offences committed in the other part raises the question of how the relevant facts can be proved when the witnesses to them are likely to be in the part where the offence was committed and a court sitting in the other part has no power to compel the witnesses to come to the part within its jurisdiction to give evidence. To meet this difficulty it is proposed that the court of trial should be able to issue a letter of request to the head of the judiciary in the other part of the country for the taking of the necessary evidence by a judge of the High Court in that part. The evidence will be taken in the presence of the member or members of the court of trial and the accused will have the right to be present and legally represented at the taking of the evidence and also the right to cross-examine the witnesses. If he decides to be present, he will be taken in custody to the jurisdiction where the evidence is to be taken and kept in custody there, but while in custody he will be immune from any proceedings in respect of any other matter, civil or criminal, in that jurisdiction. The procedure, so far as it depends on the law of the State, is set out in sections 11 to 13.

Section 11 applies to trials in the State and provides for he issue of the letter of request for the taking of evidence in Northern Ireland; section 12 provides for the taking of evidence in the State in response to a request by a court in Northern Ireland; section 13 is ancillary. I do not think I need describe all the provisions of the sections in detail. I shall mention certain points briefly and then deal with objections that have been raised against the procedure proposed.

First, in the case of a trial in the State, the procedure will be avaliable only to the Special Criminal Court and to a court hearing an appeal from that court. It will not be available for jury trials.

Secondly, at a trial in the State the court will be bound to issue the letter of request if either party so requests unless the court is satisfied that it is not in the interests of justice to do so. The court might refuse to do so, for example, if it considered that the request was made only in order to delay the proceedings. The court will have power to issue the letter of request of its own motion. An appellate court will have power to do so on request or of its own motion. This will be in accordance with the general rule that it is a matter for the discretion of an appellate court whether to receive evidence for the purpose of the appeal.

Thirdly, where a court in the State issues a letter of request, it will be required to inform the accused of his right to be taken to Northern Ireland in order to be present at the taking of the evidence and of his position if he exercises the right, including the necessity for him to be kept in custody in Northern Ireland, his rights at the taking of the evidence and his immunity from other proceedings in Northern Ireland. I want to emphasise that a defendant who exercises his right to be present at a commission is guaranteed immunity from any other proceedings and is guaranteed that, on the conclusion of the commission, he will be returned to the State. His rights at the taking of the evidence include, of course, the right to be represented by his lawyers from the State and their right to cross-examine and so on.

Fourthly, the judge who is to take the evidence on commission, referred to as the commissioner, will have all the necessary power to compel a person to attend as a witness and to produce documents as in the case of a witness at a trial, and a witness giving evidence on commission will enjoy all the privileges and immunities of a witness at a trial. These will include the privilege of refusing to answer an incriminating question and immunity from being sued in respect of anything said when giving evidence.

I should mention here that the provisions of the British Bill as to the taking of evidence on commission are similar in effect to those of the present Bill.

Objections have been raised to the procedure in sections 11, 12 and 13 of the Bill principally on the grounds that they prevent the accused person getting a fair trial. In answer to these objections let me stress that what takes place before the commissioner is not the trial or even part of the trial. The commissioner in the North is simply taking evidence for the trial and the admissibility, cogency and relevance of that evidence is a matter for the trial court. The accused person has the right to confront the witnesses who give evidence on commission and he will be perfectly entitled either to cross-examine them himself or have them cross-examined by his counsel. Indeed, in some cases the witnesses may be his own witnesses.

I referred already to a recent Supreme Court decision and I should now like to quote from the decision of the Court as delivered by the then Chief Justice Ó Dálaigh. The case I refer to is In the Matter of the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act 1970 and in the Matter of the Courts (Supplemental Provisions) Act 1961 and in the Matter of Pádraic Haughey. It is reported in [1971] Irish Reports at page 217 and the decision of the Supreme Court begins at page 256. The Supreme Court held that the enforcement of any rule of procedure which would deprive an accused person of his right to cross-examine, by counsel, his accusers and to address, by counsel, the tribunal in his defence would violate the rights guaranteed by Article 40, section 3, of the Constitution.

At page 261, 3rd paragraph, the Chief Justice says:

As to the disallowance of cross-examination, an accused person has a right to cross-examine every witness for the prosecution, subject, in respect of any question asked, to the Court's power of disallowance on the ground of irrelevancy. An accused, in advance of cross-examination, cannot be required to state what his purpose in cross-examination is.

At page 263, he states:

Having thus apparently accepted the necessity for such immunity [the immunity which the Act of 1970 gives to witnesses], counsel's submission was that, in all the circumstances, the minimum protection which the State should afford his client was (a) that he should be furnished with a copy of the evidence which reflected on his good name; (b) that he should be allowed to cross-examine, by counsel, his accuser or accusers; (c) that he should be allowed to give rebutting evidence; and (d) that he should be permitted to address, again by counsel, the Committee in his own defence. Protection (c) was allowed by the Committee and no real difficulty arose with regard to (a), so far as I can see; therefore (b) and (d) are the crux. The Committee's procedures ruled out the two latter protections.

The protections to which the Supreme Court decision refers, namely the right to cross-examine and the right to address the tribunal, by counsel, in one's own defence are in no way whatever adversely affected in the Bill now before us. At the top of page 264 of the report, the Chief Justice states in reference to these rights of cross-examination and giving rebutting evidence:

Without the two rights which the Committee's procedures have purported to exclude, no accused—and I speak within the context of the terms of the inquiry—could hope to make any adequate defence of his good name.

The Supreme Court held that the denial of the two rights in the procedures adopted by the Committee of Public Accounts, namely the right to cross-examine and the right to address the tribunal by counsel, violated the constitutional rights guaranteed by Article 40, section 3, of the Constitution, which, in the words of the Court "is a guarantee to the citizen of basic fairness of procedures".

Hear, hear.

Article VI of the Amendments to the Constitution of the United States—that is to say, the Sixth Amendment, which is part of the Bill of Rights—sets out among the rights of an accused person the right: "to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence". In fact, the right to confrontation is expressly enshrined in almost all the Constitutions of the States. It is quite clear in the United States that the right to confrontation cannot be distinguished from the right to cross-examination, which is the same right under a different name. There never was at common law any recognised right to an indispensable thing called confrontation as distinguished from cross-examination. As has been authoritatively stated in the United States, "if the accused has had the benefit of cross-examination, he has had the very benefit secured to him by the Constitution".

I have discussed the position in the United States to show how fundamental the right to cross-examination is and that, once that right is secured, the right to confrontation, which, incidentally, is not in terms guaranteed by our Constitution, is also secured. Any procedure in which the right to cross-examine and the right to address the court of trial exist cannot violate constitutional rights either here or in the United States. And these rights not alone exist but are fully protected in the procedure set out in this Bill for the trial of extra-territorial offences. In fact, the Bill is carefully framed to ensure that the accused will have a fair trial and that his constitutional rights will not in any way be infringed. What I have said refutes any argument that the procedure deprives an accused of a fair trial by reason of the admissibility of evidence taken on commission. No other reason has so far been advanced as to how the Bill would deprive anybody of a fair trial or, to quote Article 38, section 1, of the Constitution, of his right to be tried "in due course of law".

The provisions of the Bill for the taking of evidence on commission in Northern Ireland have been criticised as unworkable because of difficulty as regards the identification of the accused if he does not exercise his right to be present at the taking of the evidence. The argument, as I understand it, is that the witness will not be able to point to the accused before the court as the person who committed the offence, and that therefore, when the witness's evidence is read at the trial, there will be nothing to identify the offender about whom the witness has spoken as the accused before the court. But a few moments' reflection will demonstrate the fallacy of this argument. Not all evidence at a criminal trial is given by eye-witnesses of the offence nor is identity necessarily proved by visual identification. For example, one witness may prove an assault, an explosion or a robbery without being able to identify the offender, another witness may prove the hijacking of a car used to commit the offence, a third witness may prove that fingerprints were found on the car, a fourth may identify those fingerprints as those of the accused and so on. In other cases there may be no dispute as to the identify of the person involved but the accused may claim that he was acting in self-defence or under duress or that what happened was the result of an accident. Moreover, it may be the defence that wish for evidence to be taken on commission.

They may wish to call a witness to say that he saw the offence being committed and that the person who committed it was, say, a tall man with red hair when in fact the accused is a short man with black hair. Again the defence may wish to call an alibi witness to say that he saw the accused, whom he knows well, 50 miles from the scene of the crime. Even where the prosecution call an eye-witness to the offence he may be able to identify the accused as the offender because he knows him personally. It is true that there may sometimes be a case where evidence given on commission may turn out to be valueless to the prosecution because it will be impossible at the trial to relate the evidence to the accused. If this should happen, the prosecution would presumably not seek to read the evidence at the trial, or the court would be likely to exclude it. But the fact that the procedure proposed may be ineffectual in some particular cases is not an argument why it should not be available for cases in which it will be useful, especially as it is to be available for the defence as well as the prosecution.

Section 14 is a very important provision, though I can summarise it quite shortly. It enables a person charged in the State with an extra-territorial offence committed in Northern Ireland to opt for trial in Northern Ireland for the corresponding offence under the law there in respect of the conduct in question. It will be a condition that there should be a warrant in force in Northern Ireland for his arrest for the latter offence. The right of option is an essential part of the scheme proposed by the Law Enforcement Commission. If the accused decides to exercise the option, he will naturally have to go in custody to Northern Ireland for the trial there and to be kept in custody there unless the court there releases him on bail. A person accused in Northern Ireland of an extra-territorial offence committed in the State will have a corresponding right of option under the British Bill to be tried in the State.

I shall mention a few matters in respect of the procedure. Subsection (1) provides that both the District Court and the court of trial shall inform the accused of his right of option. If he exercises the option, the court will make the necessary order for his delivery in custody to the police of Northern Ireland. In addition, the accused will be able to go before the High Court specially for the purpose of exercising the option before that court.

If, after having exercised the option, the accused escapes from custody, whether in the State or in Northern Ireland, and is found in the State, he will be brought before a judge or justice of any court, who, if satisfied as to the facts, will make a fresh order for the accused to be taken in custody to Northern Ireland. The judge or justice will be able, though not compelled, to act on a certificate by the appropriate authority in Northern Ireland that the accused escaped from custody there. If the accused is subject to other proceedings in the State, his delivery to Northern Ireland in accordance with his option will be postponed to the conclusion of the proceedings and of his sentence, if any.

Section 15, which is declaratory, prevents double jeopardy. Natural justice demands that, where a person is subject to two criminal jurisdictions and has been acquitted or convicted under the penal law of one jurisdiction, he should not be charged with or tried for the same offence in the other jurisdiction.

Section 16 provides that barristers and solicitors in Northern Ireland shall have a right of audience before courts in the State in proceedings in connection with an extra-territorial offence and the taking of evidence on commission in the State for the purpose of trials in Northern Ireland. Barristers and solicitors practising in the State will have a right of audience before a commissioner taking evidence in Northern Ireland for the purpose of a trial in the State, but they will not have a right of audience at a trial in Northern Ireland. Notwithstanding the absence, for the present at any rate, of reciprocity as regards the right of audience at trials, the Government here believe that it is right in principle that persons charged in the State with offences committed in Northern Ireland should be able to be defended by barristers or solicitors practising in Northern Ireland. I should mention that in the North solicitors have not a right of audience at trials on indictment whereas here solicitors have a right of audience in all courts.

Section 17 enables a court before which proceedings for an extra-territorial offence are being held to prohibit the publication of the name and address of a witness except to the court, the parties to the proceedings and other persons concerned. The power will be exercisable not only in respect of a witness who gives evidence before the court but also in respect of the maker of an oral or written statement tendered to the court—for example, the maker of a deposition—and of any person for the taking of whose evidence on commission in Northern Ireland the court issues a letter of request. A commissioner taking evidence in the State for the purpose of a trial in Northern Ireland will have a similar power under section 12 (2) (d) of the Bill. These powers might have to be exercised for the protection of the witness concerned.

Section 19 confers powers of arrest without warrant in connection with an extra-territorial offence. These powers correspond substantially to the common law powers of arrest in respect of felonies, and they are given by the Bill because the offences in question are not being made felonies. If, as I hope, provision is made by legislation here abolishing the distinctions between felonies and misdemeanours in the case of ordinary offences under the law of the State, these are the powers which, I suggest, should be conferred by the legislation in consequence of the abolition.

Subsections (4) and (5) of section 20 make certain provisions relating to the procedure for extradition between the State and the neighbouring jurisdictions, chiefly in consequence of the extension by the Bill of the criminal law of the State to certain things done in Northern Ireland. Subsection (4) (a) ensures that a person acquitted or convicted at a trial in the State for an extra-territorial offence shall not be extradited to Northern Ireland for an offence consisting of the same acts.

Subsection (4) (b) makes it impossible for the authorities in Northern Ireland to obtain the extradition of a person for an offence committed in the State on the ground that this is an extra-territorial offence under the law of Northern Ireland under the corresponding provisions of the legislation there. Subsection (5) ensures that a person who has been extradited to the State for an ordinary offence shall not be tried in the State for an extra-territorial offence committed before his extradition unless either of two conditions is satisfied.

One is that a warrant has been issued in Northern Ireland for the offence in question, in which case he will have the option to go there for trial under section 14. The other is that he has had seven days in which he has been free to leave the State after the conclusion of the proceedings for the offence for which he was extradited to the State—and any other proceedings pending against him— and the conclusion of any sentence passed on him in those proceedings, or he has returned to the State after leaving it.

Subsection (6) of section 20 ensures that a person convicted of an offence under section 2 consisting of murder committed in Northern Ireland shall not be liable to the death penalty even if the circumstances of the offence are such as to bring it within the exceptional cases where a person would be liable to the death penalty had the offence been committed in the State. But for this provision, the accused might be liable to that penalty as a result of section 2 (1) of the Bill. Instead, he will be sentenced to life imprisonment. Capital punishment for murder has been abolished in Northern Ireland and it does not seem to the Government right that the Bill should make it possible even in theory for a person to be liable to the death penalty in the State for a murder committed in Northern Ireland.

Subsections (4) and (6) of section 21 alter the maximum sentences for three offences relating to firearms so as to bring the maximum sentences into line with those in force for the similar offences under the law of Northern Ireland. In one case the maximum sentence is reduced, in the other two it is increased. The changes are considered by the Government to be desirable in themselves and also because the offences are included in the Schedule to the Bill.

This, then, is the Bill. I regret that its transfer to this House should have produced the reaction it did from the Opposition, a reaction that sounded panicky or hysterical and out of place in respect of a legal solution that is not new and, as I have demonstrated, has ample precedent. I repeat now what I said before about the transfer. This is an important piece of legislation particularly in the context of our relationship with our fellow Irishmen in Northern Ireland and it would not be right to leave it in abeyance. Because of the pressure of business in the other House, the prospect of the Bill's being debated, not to mind passed, this session was in some doubt and, accordingly, the Government decided that its legislative journey should commence in the Seanad where there was time immediately available. I find it odd that the transfer to this House produced the reaction it did, while the publication of the Bill before Christmas produced no such reaction.

The explanation for this may be in the fact that fairly widespread misunderstandings of the objectives of the Bill, and of the means proposed to achieve them, had grown up. I hope I have removed these misunderstandings.

The Bill does not provide another form of extradition for those who have escaped that process. The Bill does not provide for the handing back of fugitive offenders against their will. The Bill does not provide for trials in the courts of another jurisdiction. It provides for trials in our jurisdiction under our Constitution and in accordance with our laws and procedures. It does not provide for trials in the absence of the accused. He is entitled as of his right to be present at all stages of the trial and, where he goes temporarily to the other jurisdiction to be present at the taking of evidence on commission, he is guaranteed immunity there. What the Bill does is to make certain offences, when committed in Northern Ireland, offences against the law of our State, triable in our courts and on conviction punishable under our law in our territory.

Before I conclude, I should like on my own behalf and on behalf of the Government to express sincere thanks to the members of the Law Enforcement Commission for their report. These men were given a difficult and complicated task and they performed their duties with great distinction and with great despatch. Their agreed recommendations are being implemented both in the Bill before this House and in the Bill which is now before the British Parliament. The British Bill makes the offences with which we are concerned, when committed in this State, offences against the law of Northern Ireland, thereby dealing, for the protection of the citizens of this State, with the converse of the problem being dealt with in the Bill before the House today.

Hopefully, when both Bills are enacted, no terrorist whether his hue be green or orange will be able to find a refuge from the consequences of his crime in any part of this island. Such a situation should contribute substantially to the ending of violence— an objective devoutly desired by every right-thinking Irishman, North or South.

I commend this Bill to the Seanad.

To the question "That the Bill be now read a Second Time" I move the following amendment:

To omit all words after "That" and substitute the following:—

"Seanad Éireann declines to give a second reading to the Bill on the grounds that it contains no provision for an all-Ireland Court, is unworkable, inconsistent with Ireland's obligations under the European Convention of Human Rights, and repugnant to the Constitution, in that it contravenes Articles 3 and 38."

In this debate we can take the motion with the Second Stage debate and there will be a seconder to the motion at a later stage.

First of all I should like to emphasise that we in the Fianna Fáil Party in the Seanad are going to examine this Bill both on Second Stage and on subsequent Stages in a cool manner designed to serve the best interests of this island. That will be our objective right through in every contribution from this side of the House. I want to emphasise this because certain Government spokesmen of late have been seeking in their statements to jeopardise our mutual desire for reconciliation on this island by applying certain labels to the Fianna Fáil Party. I want utterly to refute any such labels which they seek to be attached to us, and to emphasise that the Fianna Fáil Party are totally committed to reconciliation and to peace on this island. We hope through peaceful means and through reconciliation one day to achieve the unity of wills that will bring our peoples together in one nation. As far as we are concerned as a political party, and we are totally unanimous on this matter, we believe in adopting peaceful means towards reconciliation and peace.

The most divisive elements that have been introduced into the whole debate concerning the problem of Northern Ireland in recent months have been introduced by certain members of the Government. I exclude the Minister present. I exclude the Taoiseach. To be quite blunt about it, I do not exclude the Minister for Posts and Telegraphs and on occasions I do not exclude the Minister for Foreign Affairs.

We must look at this matter in a very cool way. I have been in the North in recent days and have talked to people there and they are, naturally, much more conscious than we are of the importance of looking at this whole question in a very detached and sensible manner.

The first major criticism I would make of this Bill at this time—at this time, I emphasise—is that it is totally divisive and you cannot come into the House as the Minister has done and give an academic treatise of the principles of extra-territorial jurisdiction and the notion of international law and extra-territoriality and the rest of it. I will be dealing with that aspect at a later stage. I want now to concentrate on the first aspect, which is the practical political aspect of the introduction of this measure at this time.

I have talked to people of all persuasions in the North of Ireland on this. Everybody asks the big question: Why——in capital letters—at this stage when the Provisional IRA have been for two months enforcing very reasonably a cease-fire in the North, when there is a noticeable diminution in tension in that part of Ireland? I speak from the experience of Sunday, Monday and Tuesday of this week. There has been a notable diminution in tension, arising partly out of the cease-fire, a noticeable withdrawal on the part of the British military personnel from provocative positions in various parts of the North of Ireland, a very noticeable withdrawal by them back to barracks. There is now a freeing out of civilian life, trade and commerce and people are able to a greater degree to go to their work. The political elements that had caused all the hatred and killings and bombings over the years are now diminishing and we unfortunately are now witnessing just horrible sectarian crimes of a personality category.

Why at this stage introduce this measure which is totally divisive by its very nature? And if anybody asks what do I mean by divisive, it would be divisive in the worst possible sense in regard to its practical workings. It will divide the North from the South. It will divide the majority from the minority in Northern Ireland. It will divide the minority in Northern Ireland from the people of the Republic and it will divide the people of the Republic. It is introducing a unnecessarily controversial and provocative debate at a stage when the whole political atmosphere in the North appears to be hopefully simmering down.

Precisely at this stage this is thrown into the political ring. Its only possible effect will be divisive and it will certainly not promote reconciliation. It will provoke controversy in its timing from the point of view of the Convention election in particular. There is a Convention election taking place next Thursday in the North on which tremendous hope is being placed for very good reasons in that it represents in many ways the last chance to bring people together around the and try to hammer out some sort of solution for the future of Northern Ireland. Why just before this very important election is this divisive legislation introduced? To cause more trouble, or was there any thought given to the effect that it may have on the Convention election?

I can assure the House that the total desire—and I was very heartened by this—on the part of practically everybody other than some ultra-Loyalists is to try and make this Convention work and to try to evolve some sort of community sharing of responsibility out of the deliberations of this Convention. Apart from the view of some ultra-Loyalists with whom I discussed the matter, this was the view right across the board that I heard expressed—by the Unionist Party of Northern Ireland led by Mr. Brian Faulkner, by Official Sinn Féin, by the SDLP and by many ordinary people who would be voting across the board for all political parties. The boycott campaign being advocated by the Provisional IRA in regard to the North of Ireland in regard to the Convention elections is not going to succeed, thanks be to God. You are going to see a substantial turn-out of people voting despite the boycott campaign and the threats of boycott.

Why in that atmosphere, when progress is being made and when we have an elimination at last of political warfare, as it were, up there is this provocative measure introduced to cause a divisiveness and controversy both here and in the North?

Nobody at the time regarded the arrangements reached at Sunningdale, in December, 1973, as perfect but they at least represented a start on the right road. Undoubtedly, they represented a package through which fair-minded Irish men and women could participate in parliamentary decision-making processes. I should like to refer the Minister and the House to the Sunningdale document from which it can be seen quite clearly that this particular matter we are now discussing was the subject matter of one paragraph, and no more, in that document. Our discussion was the subject matter of paragraph 10 and it was agreed in that paragraph that the important aspect of tackling this problem was:

the creation of a common law enforcement area in which an all-Ireland court would have jurisdiction, and the extension of jurisdiction of domestic courts so as to enable them to try offences committed outside this jurisdiction.

It was agreed then that the problems of considerable legal complexity were involved and that a commission would be established.

The purpose of paragraph 10 of the communiqué was the creation of a common law enforcement area in which an all-Ireland court would have jurisdiction. This is what we have incorporated in our motion. There is no provision in the Bill for an all-Ireland court, there is no provision for common law jurisdiction. What we have instead, as I will show later, is a highly cumbersome and impracticable way of exchanging offenders from one jurisdiction to another without any overall court jurisdiction, any overall police authority or any overall common law enforcement area. Indeed, the whole essence of the paragraph I have just referred to, which relates to setting up an all-Ireland court——

Which paragraph?

I am referring to paragraph 10. I shall read it completely:

It was agreed by all parties that persons committing crimes of violence, however motivated, in any part of Ireland should be brought to trial irrespective of the part of Ireland in which they are located. The concern which large sections of the people in Northern Ireland felt about this problem was in particular forcefully expressed by the representatives of the Unionists and Alliance parties. The representatives of the Irish Government stated that they understood and fully shared this concern. Different ways of solving this problem were discussed.

"Different ways."

Among them were the amendment of legislation operating in the two jurisdictions on extradition; the creation of a common law enforcement area in which an all-Ireland court would have jurisdiction, and the extension of the jurisdiction of domestic courts so as to enable them to try offences committed outside this jurisdiction.

Subsequently, it was agreed that a commission be established. Furthermore, and this is important, in paragraph 11 of the Sunningdale communiqué it was agreed:

That the Council would be invited to consider in what way the principles of the European Convention on Human Rights and fundamental freedoms would be expressed in domestic legislation in each part of Ireland.

There is no reference to that idea here. There is no reference to a basic bill of rights, no reference to a translation of the European Convention on Human Rights in the context of an all-Ireland jurisdictional situation. That is ignored.

Paragraph 12, which links the package as a whole, relates to the question of policing and the need to secure public support and identification with the police service throughout the whole community. Paragraphs 13, 14 and 15 all relate to the most important aspect of all when one considers what is before us now, and that is the establishment of a policy authority. I now quote from paragraph 15:

With a view to improving policing throughout the island and development community identification with and support for the police services, the governments concerned will cooperate under the auspices of a Council of Ireland through their respective police authorities. To this end, the Irish Government would set up a police authority, appointments to which would be made after consultation with the Council of Ministers of the Council of Ireland.

All the earlier paragraphs deal of course with the establishment of a Council of Ireland.

The Senator will agree that the Council of Ireland was a precondition to the police authority.

That is precisely my point, if the Senator will listen to my argument. My point is that what we are now discussing is the fag-end of the Sunningdale Agreement which has failed. Fundamentally we are dragging in here in a divisive manner at this stage of our history a matter which was very small and unrelated to the overall Sunningdale package which did not even envisage the sort of extra-territorial exchange of offenders envisaged in this Bill. Instead, it envisaged a situation where there was already a power-sharing executive in existence before Sunningdale, a power-sharing executive where the community would be broadly represented.

In the Sunningdale Agreement, a Council of Ireland would be established with an assembly and joint executive. Hopefully, along with that, an all-Ireland court with a police authority run by the Executive of the Council of Ireland would be established. Linked with that idea there would be a bill of rights or application of the European Convention on Human Rights. That is what Sunningdale was all about. That has failed and we want to get matters back on the rails again. Hopefully, this is what the Convention, after it is elected on next Thursday in Northern Ireland, will do.

The Law Enforcement Commission was established as a result of the Sunningdale recommendation. This commission reported one year ago. They declined to discuss the all-Ireland court method because of the urgency of the situation. It was agreed that, because it was impracticable to deal urgently with this problem—the Commission were concerned about offering a practicable, immediate solution to the problem—that this method of an all-Ireland court—I shall quote from paragraph 9 of the Law Enforcement Commission Report—

possessed certain advantages: for example, the court's ability to sit anywhere in the island and its jurisdiction over the whole island would solve problems with regard to attendance of witnesses. Moreover, full uniformity in the law to be administered has many attractions. However, the setting up of such a court would require amendment of the Constitution of Ireland. This could only be brought about by a referendum, which would be attended by inevitable delays and by uncertainty as to the result.

In other words, the question of an all-Ireland court with the police authority, with uniformity in regard to laws and sanctions, was not considered in detail by the learned members of the commission because at that stage, 12 months ago, they were told by the Government: "This is a matter of urgency; we want to get going; bring in a report as quickly as possible; we cannot bring in an all-Ireland court recommendation inside the next few months and therefore we will not go ahead with it."

It is now 12 months afterwards. The undoubted ability, contained in the membership of that commission, was not applied to the basic recommendation of Sunningdale and to what the commission regarded as the best method to be adopted, that is, the all-Ireland court method. The Government then proceeded to examine what they obviously regarded as the second and third best methods, that is the extradition and extra-territorial methods.

All that happened in the context of a situation which exists no longer. Why, at this stage, when that commission reported last April in the context of a power-sharing situation, in the context of an envisaged Council of Ireland, are irrelevant recommendations being dragged into a situation 12 months later when the Sunningdale recommendations are no more?

It astonishes me from the political point of view, from the point of view of having peace and reconciliation in this island and from any point of view, and I can see no reason for it. I always like to ascribe rational opinions and reasonable bases for decisions taken by people opposed to me in politics, but I cannot see any rationale in this case. That commission report is now rendered redundant by reason of the total collapse of the Sunningdale institutional framework. Northern Ireland is now making a new start in the form of its Convention, which hopefully will get under way after next Thursday, and here we are bringing in a Bill which is completely out of context and completely irrelevant in the new situation.

There is a completely new situation. The recommendation of the Law Enforcement Commission of 12 months ago gave the second best. They were rushed by the Government to produce the second best because the best, in the form of an all Ireland Court, would have taken too much time and would have required constitutional amendment. The second best is now resurrected 12 months afterwards. Again I ask, why? We do not want an academic treatise from the Minister—I must say it was a very interesting treatise on international law and extra-territorial jurisdiction— but that is not what we are talking about. We are talking about a Bill being introduced into what we know to have been an inflammable situation, but which is now relatively quiescent. It is still potentially inflammable and this Bill can only cause division, provocation and further trouble.

Firstly, I would like to hear from the Minister why the Bill has been brought in at this time and in what way will it promote reconciliation. I am going to produce a number of practical aspects of this Bill which will show that in its enforcement it is so lacking in practicality that it could cause a politically disastrous situation and further trouble for all.

There are four fundamental sections, Nos. 2, 3, 11 and 12, and Nos. 13 and 14, to a certain degree. Section 11 relates to the taking of evidence in Northern Ireland for a criminal trial in this State and section 12 to the taking of evidence in this State for a trial in Northern Ireland. Let us take section 11 first and bring it down to the practicalities of how it will work out. Somebody is alleged to have committed an offence in Northern Ireland and is apprehended in the South. There is no evidence against him other than information given to a police officer who apprehends him here. There is no more than that. He must be brought before a competent court authority here, when he can exercise his option to be tried here, with witnesses coming from the North to give evidence against him or, alternatively, if these witnesses refuse to appear here, he can opt to be tried in the North of Ireland. The evidence will be taken before a commission in the North of Ireland and he will be returned here for the trial itself.

Take the case of the trial which takes place here, with witnesses coming from the North of Ireland to a trial by the Special Criminal Court in any part of Ireland. If this happens—and it is written into the Bill so I presume it may happen—police officers from the North of Ireland, security personnel, witnesses, British Army personnel—although I understand British Army regulations will prohibit them from coming down, although the statute does not say that—will come to the South for the trial of a person accused of an offence committed in the North.

Would anybody suggest that that is not creating a divisive situation here? Would anybody suggest that we are not importing trouble and terrorism into this part of Ireland by having demonstrations and riots outside our courts, where British security and North of Ireland personnel or witnesses, hooded or otherwise, would be coming down to our courthouses to give evidence for or against somebody apprehended by our police force? Just contemplate the practicalities of that. If that is not calculated to stir up trouble, dissension, riots, demonstrations, damage to property and danger to life, I do not know what is.

However, concerned people in the North would be reluctant to become involved in that, so they will not come down here. Taking sections 11 and 12 together, the likely procedure then will be that the evidence will be taken before a commission in the North.

Our courts will travel to the North and act merely as observers—they have no other right but to act as observers—while evidence is heard by a judge in the North from the people I have mentioned. That evidence will be taken down in writing but the judges who will be ultimately trying him, will have no right to cross-examine the witnesses concerned. The accused man has the option of being there, but he may not be there. He has an option of being represented by counsel or solicitor, but he may not be so represented. He is not compelled to be present. So at a commission hearing, at which three judges of our Special Criminal Court will sit silently by, on the basis of evidence given by civil and/or military personnel or police personnel, this offender will be sent back for trial to the Republic. The Special Criminal Court will then have to decide, on the basis of such evidence—and it can be unchallenged evidence—whether to convict the man here. Of course, I have sufficient faith in our own legal institutions that they will not so convict; but that is what is in the Bill. They can convict on that basis.

There are the two options open to a person apprehended here on any of the specified scheduled offences. The options are: he can have a trial here at which he will have civil, military, security, or police personnel from the North giving evidence or he can go before a commission in the North at which our three special criminal judges will sit like dummies beside the commissioner judge of the North who will conduct the proceedings. The three judges will eventually determine and decide in their court the fate of this offender who will have no right to question the evidence or question whatever privilege may be claimed by the State witnesses proferring evidence before the Commission in the North. This can be done in the absence of the accused and his legal representatives.

The Minister states that the accused has the right to be present under section 11 (2). That is correct but he must be present in the custody of the police of Northern Ireland. I ask the House to consider this very carefully. Consider the case of a man who has been apprehended and charged here on the basis of information supplied to a police officer from the North of Ireland and has secured bail—a basic human right under the criminal code of every civilised country. I will be referring to that again when I come to the European Convention on Human Rights.

Under this Bill a man who must appear before this commission in the North has the right to be present, provided he is in the custody of the police of Northern Ireland. He is a free man on bail from our courts having given certain guarantees to the courts of the Republic. To hear the evidence against him in the Northern Court he must first transfer himself into the custody of the Northern police. If he does not do that he cannot be heard. This represents a very real contravention of the European Convention on Human Rights. The British Government are at the present moment being challenged by the Irish Government before the European Court on Human Rights for the indescribable acts of torture and brutality against people detained in the North. While the Irish Government is currently pursuing the case against the British Government, the Minister is asking that offender who is on bail in the Republic, to turn himself over to the Northern police. before he is allowed to hear the evidence against him. I did not invent the crimes of institutional violence which occurred in the North and in respect of which the Irish Government is now pursuing its case.

I am referring, in particular, to the report of the committee of privy councillors appointed to consider authorised procedures for the interrogation of persons suspected of terrorism. March, 1972, is the date of the reference. It has been also called the Compton Report. The Compton Report of the 3rd November, 1971, and the 14th November, 1971, set forth details of interrogation in depth which had taken place in the year 1971. Their conclusions were that the procedures consisted of (1) keeping the detainees' heads covered by a black hood, except when being interrogated or in a room by themselves and that this constituted physical ill-treatment, (2) submitting that detainees should continue listening to monotonous noise at a volume calculated to isolate them from communication, and this was a form of physical ill-treatment, (3) depriving detainees of sleep during the early days of the operation, and that this constituted physical ill-treatment, (4) depriving the detainees of food and water other than one round of bread and one pint of water at six hourly intervals, and that this constituted physical ill-treatment of men who were being exhausted by other means at the same time, (5) making the detainees stand against a wall in a required posture, facing wall, legs apart with hands raised up against the wall, except for periodical lowering of the arms to restore circulation. The second Compton Report showed that some men who were subjected to that sort of procedure were in that position for periods totalling 35 hours.

On the basis of these complaints arrived at as a result of a committee of privy councillors chaired by Lord Compton—a very impartial board— the Irish Government proceeded to pursue its remedies before the European Court. This Bill now asks that an Irish offender who has been granted bail by a free Irish court and is a free Irishman should submit himself to the custody of those people against whom the Irish Government have been pursuing claims over a number of years, which are now reaching finality in Strasbourg and elsewhere. I hope the Irish Government do not welch in pursuing this matter to finality, because as long as that atmosphere exists, I can well understand how unreal it is to ask any person on bail here to go into a custody situation in the North in order to be present before a commission while evidence is taken against him.

These are facts—there is nothing emotive about them. I am more than disturbed to notice that under section 3 (2) a person who escapes from lawful custody while in Northern Ireland pursuant to an order under section 11 (2) shall be guilty of an offence. I do not mind the offences in the schedule because they are all serious offences. But if an offender decides to go before the commission in Northern Ireland and is treated in the manner the privy councillors found that certain people were, and makes his escape down here, under section 3 (2) that escape is deemed to be an offence for which he can be brought to trial again.

That is why it is impractical and divisive to bring in a measure of this kind at the present time. It is divisive in the sense of having courts here where personnel from the North would be present. It is totally impracticable because it is asking an offender to forego bail and to go into custody in the North of Ireland to listen to witnesses, and subject himself to custody of security people who have been guilty of the offences I mentioned.

It is not practical on another basis. The case the Minister referred to is in the matter of the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970, in the Matter of the Courts (Supplemental Provisions) Act, 1961, and in the Matter of Pádraic Haughey. It is reported in Irish Reports at page 217 and the decision of the Supreme Court begins at page 256. We examined it fully, quoting against himself, because that decision holds that there can be no rule of procedure which would deprive the accused person of his right to cross-examine and the presence, whether you call it confrontation, as it is called in America or cross-examination under the British and Irish wording: the right of the accused to be present when evidence is being given against him is a fundamental part of criminal jurisprudence, not just in Ireland and Britain but throughout the world. There is no point in saying otherwise. This is written into our Constitution and into the European Convention on Human Rights. You just cannot try a person if that person is not in a position personally to cross-examine the witness giving evidence against him, directly or through counsel or solicitor.

For the very good reasons I have mentioned, most offenders will not go North. They will not be present to confront, cross-examine or listen to the evidence against them. They will not be present so that proper identification can be made by the witnesses giving evidence against them. Every one of these trials, if they proceed in that manner, are openly in contravention of the Constitution and, in my view, the case to which the Minister referred and the Covention on Human Rights.

The case to which the Minister referred relates to Article 40. 3. 1º of the Constitution which states:

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

Article 38. 1. states:

No person shall be tried on any criminal charge save in due course of law.

Article 3, relates back to the due course of law, being jurisdiction exercised by the Parliament and Government established by this jurisdiction, and that that area shall be the area of the application of the laws of Saorstát Éireann and the like extra-territorial effect. This means in toto that under section 3 this State can administer laws through its duly established courts. Article 38 makes provision for one of those courts being the Special Criminal Court. That is the only saver, as it were, to the fact that no person shall be tried on any criminal charge save in due course of law. Article 38.3 says that special courts may be established by law. This article guarantees personal rights.

Then, it goes on to the vital habeas corpus provision and deals basically there with the establishment of courts, having jurisdiction to interpret and enforce under laws passed and for the time being under the control of the Parliament and Government which is the Republic of Ireland for the time being in the Twenty-six Counties, and in the enforcement of such laws due regard be had to basic rights and due accordance of law.

We now have a Bill which defies these basic canons of law in several respects. First, the accused person need not be there to hear the witnesses who give complaint against him in evidence; secondly, the accused person may not be there to be indentified by the witnesses who allege A, B, C, D, against him; and thirdly, the evidence tendered before a judge of a different jurisdiction cannot be assessed by the judges who will ultimately try him from his own jurisdiction.

Because there is no right for them to cross-examine and question the witnesses. This can only be done by the particular chairman of the commission who is the appointed judge/chairman of the commission hearing the evidence. The other three judges from this jurisdiction, who will ultimately try the case, will sit there and look on.

They will sit there and look on and no more. They will have no rights of cross-examination, of inquiry, or to question, for instance, when the immunity of privilege may be claimed, which is often claimed in these cases by police officers. They will in no right have to question in any way the immunity of privilege where it may be pleaded by——

If I could refer to section 12 (4), it gives the members of our courts the right to request the Commissioner to put a specific question.

I am well aware of that subsection. That is a different matter altogether. That is where the trial judges may ask the Commissioner to put certain questions. But the trial judges themselves, the people who will ultimately try this man for his life or liberty, have no right to cross-examine or test the credibility of the witnesses themselves. This is the basic point. The rule on the aspect of privilege is equally important. Indeed, the aspect of privilege is a usual mechanism used by police and security personnel in matters of this kind.

When they are deciding that evidence they can exclude it on the grounds of privilege, or any other reasons.

I am questioning the whole basis of criminal trial, its confrontation between judge, accused and witness. Reduced to its essentials that is what this is all about. In that situation the person in charge of the tribunal has a basic right directly to question and test, as he or she sees fit, the credibility of witnesses.

The accused has the right to be there, either directly or through his counsel, to question and test the credibility of the allegations made against him. Furthermore, the right exists to test these people making the allegations, whether lay or police witnesses, in regard to their evidence of identification. This is impossible if the accused man decides not to leave this jurisdiction, not to leave the bail granted to him by an Irish court and go into the custody of police who have been guilty of the sort of offences in respect of which the Irish Government are at present pursuing the British Government in the European Court of Human Rights.

I should like to refer to the European Convention on Human Rights. In my view, if we are going to achieve any form of decent life on this island we will have to have a basic Bill of Rights in the form of the European Convention on Human Rights. To bring in a Bill of this kind in anticipation of such a basic Bill of Human Rights is, in my view, showing a total distortion of values and of the original intentions envisaged in Sunningdale where the all-Ireland court was envisaged, not just as a negative court— courts must be negative in their punitive sense—but also a positive court in that it would be a court guaranteeing the protection of basic human rights. Such an all-Ireland court would ensure that the sort of institutional offences with which the British Government are being charged at the moment would be condemned equally with offences of personal violence which I condemn equally. Both these forms of violence would come equally within the ambit of a basic code of human and civil rights. The obvious mechanism for this was the adoption of the European Convention on Human Rights into an all-Ireland Constitution and have it interpreted and administered by an all-Ireland court with a police authority directly amenable to that court and to such joint all-Ireland institutions.

I should like to refer the Minister to the European Convention on Human Rights and in particular to Article 6 (3) (c). The whole article deals with the determination of man's civil rights and the obligations regarding any criminal charges against him. He is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal. The fundamental matter is in section (3) (c) of Article 6. Section (3) says:

Everyone charged with a criminal offence has the following minimum rights:

Section (3) (c) says:

to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

I link this with Article 5 (3) of the same convention. It states:

Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

The right to bail, as we have known it traditionally over the years, is written into the European Convention on Human Rights—Article 5 (3)— as a basic provision that you either get trial within a reasonable time or you are released pending trial on bail.

That is coming back to the point I was making earlier about the total impracticability of asking a man who is on release under bail to go into custody under the police and security forces of Northern Ireland before he can attend court. Apart from the practicality of it, it is in direct contravention——

Not attend the court, attend the commission.

Attend the commission presided over by a High Court judge. Not alone have I questioned very seriously the practicality of inducing this man to appear before the commission but, in fact, it is contrary to Articles 5 and 6 of the European Convention on Human Rights to suggest that he should do so because he is given his clear right under Article 5 to release pending trial. This release may be conditioned by guarantees to appear for trial.

But the trial is in process when the commission are taking evidence.

I am talking about the situation that arises when he is arrested down here. He must then appear before a court down here. He may apply for bail here pending the hearing by the commission with the three judges sitting in attendance on the commission. If he gets bail, which is his right under this particular article——

In the alternative, if there is not a speedy trial.

If there is not a speedy trial, he is then in the situation under this Bill where, if the court down here has exercised the option under Article 5 and has given this offender his freedom, he is now being put back into custody under the police and security forces of another establishment. Legitimately, in my view, he may say to himself "I am on bail and a free man under the jurisdiction of the Republic in which I was apprehended pending the determination of my trial. I shall not go into the custody of another police force or security force."

That option is open to him.

That option is open to him and the proceedings then go ahead before the commission and the three silent judges who are eventually going to try him. The military police and security personnel in effect say what they like without his presence or without the presence of his defending counsel or solicitor. Where is the identification? Where is the confrontation or the cross-examination? Where is the element of freedom involved—freedom to be tried in person in a court of law, freedom to be identified by the person making the allegation and freedom to cross-examine the person making the allegation? This is a basic fundamental precept of criminal jurisprudence throughout the world. It is a fundamental constitutional right written into our Constitution and written here into Articles 5 and 6 of the European Convention on Human Rights.

One sees here a Bill which is wrong for a number of reasons. The timing is crazy. It comes at a time when the situation is de-escalating in the North of Ireland. It will lead to division, controversy and provocation. It is unconstitutional and contrary to our whole conception of criminal law. It is contrary to the Convention on Human Rights but, above all else, it just will not work. It will mean a lot of fuss and bother about nothing.

The Minister referred to a matter which arose at Sunningdale when, as part of an alleged concession, they undertook to make murder an extra-territorial offence. Not one single charge has been made since that concession was made and since the Offences Against the Person Act, 1861, section 9, Adaptation Order, 1973 was passed. That was just a lot of nonsense. That marvellous achievement at Sunningdale—murder being made an extra-territorial offence— attracted a good deal of comment. In fact, for the practical reasons I have mentioned in regard to bringing witnesses to and fro across the Border and other practical reasons, not one single charge has been made under this order which was passed by both Houses of the Oireachtas in December, 1973. Despite all the murders committed since then not one single charge has been brought under it. I challenge the Minister on that. I know it is a fact.

Moving away from the Convention on Human Rights, the Constitution and whether it is politically divisive or not, we come to sheer practicalities: this Bill will not work. A measure of this kind, introduced in a political climate of this kind, will be utterly negative in its effect. It will have no practical value.

I will be constructive now before I conclude——

——because one cannot but be totally destructive about this Bill. As we see it, this Bill cannot be amended. The basic principles behind it are so bad that there will be no amendments from this side of the House on Committee Stage. We have had to be negative in our criticism because this Bill is unworkable and unamendable. It is contrary to the Convention on Human Rights and contrary to the Constitution. There is not one section in the Bill capable of being amended. We will therefore oppose it section by section. It is completely lacking in commonsense and practicality. We put down this amendment on Second Stage as it was the only way we could put forward our view.

I ask the indulgence of the Chair because in order to be constructive, one must go away from the Bill. I suggest to the Minister that the sensible thing to do at this stage is for the Government to swallow their pride and withdraw the Bill. There will not be any furore about it. Nobody in the North of Ireland will be concerned if it is withdrawn. The Government should continue to administer effectively, as the Minister has been doing, the Offences Against the State (Amendment) Act, 1972 which the Minister and his colleagues vehemently opposed in the Dáil. Let the Government look after their own business through their own institutions, courts and police force and proceed effectively in that manner.

Meanwhile the commission which was set up urgently to produce something out of a hat while Sunningdale lasted or some such commission could be re-established. The possibility could be investigated of having an all-Ireland jurisdiction, an all-Ireland court, with the sanctions that could be imposed by it, with the possibility of having a joint police authority, with the possibility of writing in a basic code of human rights or incorporating the European Convention on Human Rights into its administration and jurisdiction. I am well aware that it would not be an easy or a speedy task but neither would it be an easy job to rectify the unfortunate situation that has bedevilled this island for the past six years.

What I envisage is a good joint commission comprised of Northern and Southern jurists sitting together without having a sense of urgency to justify Sunningdale in a matter of weeks or having to produce a publication of this kind in which they dismissed the idea of an all-Ireland court method in one page, the only reason being that the urgency of bringing in a report was impressed upon them. They held in page 12 of their report that that was the best method but that it was not open to them to examine that method because of the need for urgency and the need for "an immediate solution to the problem". They should realise now that Sunningdale is in ruins. Hopefully the Convention elections next week will produce a way back, with the election of the sane and reasonable people——

Could the Senator tell us where on page 12 they say that the all-Ireland court was the best method? They did refer to it as a method having certain advantages.

Yes. It was the only method they referred to with any advantages.

Unless I misunderstood the Senator, I thought he said that it was the best method.

If the Senator reads the subsequent examination of what they call the extradition method and the extra-territorial method, which takes up the rest of the book, he will see quite clearly that they are grossly dissatisfied with both the extradition method and the extra-territorial method. If one reads the document as a whole as I have done it is quite clear that they are totally dissatisfied with both the extradition method and the extra-territorial method. They are both advanced as being very much the second or third solution to the problem. They state that the best solution is the one placed first. There is no mention of either the extradition method or the extra-territorial method written into the Sunningdale Agreement.

Yes, there is.

I will refer again to the Sunningdale Agreement and to the agreed communiqué.

The Senator is not only referring to it, he is re-writing it.

I will read the Sunningdale Agreement again. Everyone should be very proud of it over there. Paragraph 10 deals with different ways of solving this problem of dealing with crimes of violence. It says that:

Among them were the amendment of legislation operating in the two jurisdictions on extradition, the creation of a common law enforcement area in which an all-Ireland court would have jurisdiction, and the extensison of the jurisdiction of domestic courts so as to enable them to try offences committed outside this jurisdiction. It was agreed that problems of considerable legal complexity were involved, and that the British and Irish Governments would jointly set up a commission to consider all the proposals put forward at the Conference and to recommend as a matter of urgency the most effective means of dealing with those who commit these crimes.

All the proposals.

The only proposal that is mentioned in paragraph 10 of the agreed communiqué on Sunningdale is—and they say different ways of solving the problems were discussed —but the only one mentioned——

No. They did mention the possibility of amending the extradition ones.

We are not discussing that now.

They also mentioned extra-territoriality.

Different ways of solving this problem were discussed. Among them were the amendment of legislation operating in the two jurisdictions on extradition—that is not possible because of the extradition arrangements which we have throughout the world—the creation of a common law enforcement area in which an all-Ireland court would have jurisdiction and the extension of the jurisdiction of domestic courts so as to enable them to try offences committed outside this jurisdiction. It was agreed that problems of considerable legal complexity were involved and the British and Irish Governments would jointly set up a commission to consider all the proposals put forward at the conference.

Following, then, in paragraph 11:

It was agreed that the Council would be invited to consider in what way the principles of the European Convention on Human Rights and fundamental freedoms would be expressed in domestic legislation in each part of Ireland. It would recommend whether further legislation or the creation of other institutions, administrative or judicial, is required in either part or embracing the whole island to provide additional protection in the field of human rights.

The emphasis is on human rights.

As the Minister said, it was a package deal.

Paragraph 12 said:

The Conference also discussed the question of policing and the need to ensure public support for and identification with the police service throughout the whole community. It was agreed that no single set of proposals would achieve these aims overnight and that time would be necessary. The Conference expressed the hope that the wide range of agreements that had been reached and the consequent formation of a power-sharing Executive, would make a major contribution to the creation of an atmosphere throughout the community where there would be widespread support for and identification with all the institutions of Northern Ireland.

They go on then in paragraph 13 to talk about the inter-dependence in the whole field of law and order. In paragraph 14 they deal with normal policing and in paragraph 15 they deal with improving policing throughout the island and in developing community identification with and support for the police service. To this end, they say the Irish Government would serve a police authority, appointments to which would be made after consultation with the Council of Ministers of the Council of Ireland.

The point I am making here is that there are 20-odd paragraphs in this. They are all part of a package, a package with many faults but at least it was a start. We are now picking the fag-end of the package out of it which was only referred to by the way when, in fact, the real package envisaged—and I repeat it and I think it is a fair summation of this document—first of all a Council of Ireland composed of a joint executive representative equally of North and South. Within the framework of that there would be our continuing Executive down here and their continuing power-sharing Executive in the North. Within the framework of that also there would be an all-Ireland court with jurisdiction over the whole island and with a police authority operating and responsible to that all-Ireland court and with a basic——

That is wrong.

"To this end, the Irish Government would set up a police authority——"

But not operating to the Council of Ireland, operating to the Government here.

But it says that the Irish Government would set up a police authority, appointments to which would be made after consultation with the Council of Ministers of the Council of Ireland. I cannot read out the whole communiqué.

No, that is not in it.

Basically, this is the picture. I am trying to give the package and the package did envisage a Council of Ireland, a joint executive representative of North and South, two Executives North and South, each with their own police authority responsible to the Council of Ireland, an all-Ireland police force, an all-Ireland court which would be responsible not just for punitive measures against offenders but responsible for the protection of human rights and that written into the Constitution for the area as a whole would be a provision guaranteeing human rights on the lines of the European Convention on Human Rights.

That is the sort of matter that was envisaged, the strategy, as it were, at the particular time. We welcomed that strategy. But we are certainly not going to welcome this at this stage when 99.9 of the strategy as envisaged has collapsed and when tentative efforts are now being made in the North to get going again through their Convention. We see no reason why this Bill, related entirely to a package that is gone, should now be introduced and its only purpose at this stage would be to cause divisions among Irishmen here, and among Irishmen in the North.

I would appeal again to the Minister, as a constructive step, to withdraw this Bill altogether and instead re-establish some form of joint judicial commission representative of the best judicial brains North and South with the terms of reference of an all-Ireland court which was not considered in this document merely because this Commission was asked to produce a recommendation as a matter of urgency—the terms of reference on the lines I have mentioned as envisaged in the Sunningdale communiqué, terms of reference incorporating an all-Ireland court, incorporating two police authorities, North and South; an all-Ireland court that would have, with a revised Constitution, of course, the task of administering basic human rights and ensuring that it had a positive function as well as a community function. It is putting the cart before the horse to bring in a measure of this kind short of some positive proposals along the lines I have mentioned. One cannot pursue the fugitive offender unless there is respect for the law in each part of Ireland, unless the legal, police and security forces in each part of Ireland command the respect of the ordinary members of the community, unless the police and security forces in each part of the island are responsible to police authorities which command respect in each part of the island and unless there is an overall court to which offenders can be made responsible under a code of human rights and in accordance with a common system of jurisprudence. It is only along those lines that you can make positive progress.

I admit this will be a slow process. The whole solution to the unfortunate problems of this island will be a slow process and we should sensibly acknowledge that it will be a slow process at every level, political, economic and social, and at this legal, constitutional level. Why not set about doing that now instead of bedevilling the whole issue by bringing up an irrelevant piece of legislation that is totally unrelated to the immediate problems now of April, 1975? It may have had some relevance to the problems of December, 1973, when the Sunningdale Agreement was signed but now, a year-and-a-half afterwards it is entirely redundant and superfluous.

Why not scrap the whole situation, drop the Bill and appoint some such commission along the lines I have suggested? I feel very strongly that such a commission given time to do it without being rushed as matter of urgency —there is no urgency now—would come up with some proposals. Then they might find a common basis of agreement but this measure, unfortunately at this stage, is only going to escalate a situation that thankfully is de-escalating at the moment. It could only serve to bring the laws and the institutions of the State here into disrepute and disregard.

The amendment requires to be seconded.

I second the amendment and reserve my right to speak later.

I cannot say that I was impressed by Senator Lenihan's attack on the Bill or by the proposal in his amendment. No doubt he did his best. The reason why he failed to impress me was that he had not sufficient material on which either to argue logically for the acceptance of the amendment or to oppose this Bill. I had hoped that we might hear from Senator Lenihan something reasonably substantial as to why, in the considered view of Fianna Fáil, these proposals are unconstitutional.

One of the reasons urged in this Second Stage amendment against the Bill is that the Bill is repugnant to the Constitution. I would not have the impertinence to advise Senator Lenihan as to how he should present a case in court against the constitutionality of this Bill, but I will go so far as to say that if the case which he presented to the Seanad were the strongest case which he could present in court in challenge of the constitutionality of this Bill, he can set his mind at rest because no court on that basis would find this Bill in any way unconstitutional.

Senator Lenihan attacked the Bill principally on three grounds. He regarded it as untimely, as divisive and as unworkable. He concluded with a plea to the Government to withdraw the Bill, now that the urgency was removed.

I wonder if someone in the North of Ireland who has a pistol pointing at his kneecap regards this Bill as being in no way urgent. I wonder if we insist, as we are invited to by Fianna Fáil, in long-fingering this Bill as a remedy for the situation in this country how many more lives will be lost before some solution is found. I intend to deal with some of the matters which were raised by Senator Lenihan in connection with the report of the Law Commission and the Sunningdale Agreement.

I wish to state unequivocally that this Bill is worth having on our Statue Book, Sunningdale or no Sunningdale. It was condemned by Senator Lenihan as the fag-end of the Sunningdale Agreement. The suggestion was apparently that because it was the fag-end of the Sunningdale Agreement and that the major part of it had collapsed there was no reason why we should proceed with it. I disagree fundamentally with that outlook. If there was never any Sunningdale Agreement this legislation or something similar should be on our Statute Book. Of course this Bill was not needed and would not be needed by a Government which adopted as its policy for dealing with these matters the internment of people in this part of the country. If we voluntarily forego, as this Government have, the idea of introducing internment here, something must take its place in order to assist our fellow Irishmen in the North who are under the threat of violence and disorder which they have been facing for a number of years past.

We are dealing with only part of the problem here because we can deal with it only in part. We are dealing with that part of the problem which should seriously concern everyone who has anything to do with the farming of legislation. We are dealing with the part of the problem which affects the use of our territory, the territory that is de facto under our jurisdiction as a hiding hole for people who commit serious offences in the North and then run down here for shelter and who, because they are able to show that the serious offences are related to political offences, cannot be extradited. That is the problem which we are facing when we come to consider this Bill.

I want to ask, without gibing but with the utmost sincerity, reasonable Fianna Fáil Senators to look down, item by item, the scheduled offences, the offences which appear in the Schedule to this Bill. Let them appreciate what the Government are trying to stamp out in this legislation in part of this island—murder, manslaughter, arson, kidnapping, false imprisonment, setting fire to a church, setting fire to a dwelling house while a person is inside it, setting fire to a house, out-office, business or farming premises with intent to injure or defraud any person, setting fire to a railway station, setting fire to a public building or to other buildings, setting fire to goods in certain buildings, interference with railways, wounding with intent to cause grievous bodily harm and actually causing grievous bodily harm, causing explosions likely to endanger life or to damage property, possession of explosive substances, making or possessing explosives in suspicious circumstances, robbery, aggravated burglary, possession of firearms while taking a vehicle without authority, use of firearms to resist arrest or aid escape, possession of firearms or ammunition in suspicious circumstances, carrying firearms with criminal intent, unlawful seizure of aircraft or the unlawful seizure of vehicles.

Those are offences with which we are asked to deal in this Bill. It is all very well to adopt the attitude: "Oh yes, but those are offences which are committed on the other side of the Border, why should we concern ourselves with them"? Is that the attitude of the Fianna Fáil Party in relation to this legislation? Do they feel that we should not concern ourselves with murder, kidnapping or knee-capping or burning churches or burning buildings with people inside them just because they are done North of the Border, even if they are done by people based South of the Border? Is that the Fianna Fáil attitude? If it is I challenge them to declare it here.

We have had a civilised debate up to now.

He does not wish to discuss the Bill.

I should be extremely surprised if that were their attitude.

It is not and the Senator knows that.

Get on with the Bill.

At least we have had that much put on the record, that that is not the Fianna Fáil attitude.

The Senator knows well that it is not.

Get on with the Bill.

I shall deal with the Bill in my own way and I shall also deal with Fianna Fáil in my own way——

And tell us if you have stopped beating your wife.

I am delighted to see Senator Eoin Ryan is here to make a contribution even if it is only by way of interruption. The Law Library must be closed.

The Chair has pointed out before that the presence or absence of Senators should not be commented on in the House.

(Interruptions.)

The O'Higginses spend a fair deal of time in the Law Library, too.

I have no hesitation in withdrawing the fact that I called attention to Senator Ryan's presence.

The Government are playing politics with the Bill.

Senator Lenihan suggested, and he had the nerve to suggest it following the discussion on the Order of Business in relation to this Bill which took place some time ago, that we should consider the Bill coolly, section by section. I should like to see that done but let us get back to where I was, because it is important.

The offences which I read out, if committed in the North of Ireland, are the offences with which we are concerned on this Bill. I said before I was interrupted by Senator Lenihan that I felt quite sure that the Fianna Fáil attitude was not that they thought we should not concern ourselves with these matters merely because they were committed in the North of Ireland. Despite the interruptions to which I was subjected I want to repeat that. I am quite sure that that is not the Fianna Fáil attitude.

The Deputy may rest assured it is not.

Why, then, do they put themselves in the position of obstructing—and we were promised obstruction by Senator McGlinchey— the implementation of a Bill which is designed, as far as we can do so, by an extension of our criminal jurisdiction to stamp out these matters where they occur in the North of Ireland?

It will do harm. It will do no good at all and no one will ever be convicted under it.

The reasons given by Senator Lenihan were that the Bill was untimely, that it was divisive and that it was unworkable. So far as the Bill being workable or not is concerned there is only one way in which that can be tested and that is to put it into operation and see whether it works. I am not going to spend much time in replying to that kind of argument. There is no point in talking on hypothetical arguments. The only way of seeing whether the Bill is workable is to put it into operation.

It is divisive.

This Bill will only be divisive if Fianna Fáil choose to make it so. It is a measure which was recommended for implementation by the Law Enforcement Commission which comprised the people to whom the Minister referred and two of whom were at the time and three of whom are now members of the Irish Branch, two of them members of the Supreme Court. Without analysing it point by point, all of the recommendations as regards any protective measures which were to be taken in accordance with the recommendations of the commission have been put into this Bill.

As the Minister pointed out, this Bill is extending the criminal jurisdiction of this State to cover serious offences in the North. It is not providing that anyone who commits an offence and is arrested here is to be handed over for trial in the North. It is not providing that anyone who is arrested here will be tried by a Northern Ireland judge or will be kept in custody in the North of Ireland. It is providing that, if a person is charged with offences which are set out in the Schedule to the Bill, he will be brought before our own courts, that he will be charged before our own judges and that he will be punished, if convicted, in accordance with the sentence passed by our judges, in accordance with our precepts of justice, in accordance with what we believe is the right punishment to mete out. Essentially that is what is in this Bill. I did not understand Senator Lenihan to object to any portion of that procedure. I understood from his speech that he was objecting to the commission procedure laid down in the Bill.

That is the integral part of it.

I am trying to make my own case in my own way and if Senator Lenihan bears with me he may—as Senator Martin hopefully thinks—even be persuaded that it is worth while listening to the debate.

The Bill provides for trial for specified offences of a person arrested here in our courts, before our judges, that he would be sentenced in accordance with our law, and given the sentence which our judges thought proper.

The Bill also provides for exceptional cases, or cases which one hopes would in any event be exceptional, where witnesses from the North, who would be necessary either for the prosecution side of the case or for the defence side, but who did not want to come here to give evidence in our courts. If that should occur, it is obviously necessary to try to deal with the situation. This problem was dealt with in the law commission's report and I shall refer to that in a moment.

How can that situation be dealt with? Senator Ryan, Senator Lenihan, Senator Yeats and Senator Robinson are members of an honourable profession and they all are aware that there is ample precedent for commissions sitting to take evidence. The evidence must be made available if it is possible to do so. It is not obligatory on the State to seek the evidence if they do not want to, nor is it obligatory on the accused to seek the evidence if he does not want to. But assuming that a full trial with all the available evidence is desired, on the one hand by the State and on the other hand by the accused, there must be some machinery for getting the evidence if the witnesses are not prepared to come to court.

One method of doing this is to allow the evidence to be taken on deposition, in other words, the evidence to be submitted to the court by means of an affidavit of the witness. Obviously, in the kind of case we are discussing, a criminal case involving serious offences, it would be ludicrous to think that the court should be entitled to act on evidence offered to it by means of an affidavit from a witness. Another method of taking the evidence might go a little further than that, might be by the appointing by the court of an officer to have the evidence taken under oath before him. If that method were to be suggested, is it not clear that if we are talking about getting evidence in the North it is necessary to have the co-operation of the Northern authorities for that purpose?

The method suggested and proposed in this Bill is the method which was put forward by the eminent law enforcement commission which sat and produced their report. What have they suggested? They suggested that in these particular circumstances where the witnesses who were required either by the State or by the accused will not come here to give evidence, that a commission be established in the North of Ireland and that the evidence be taken by that commission, that the commission be presided over by a member of the Northern Ireland High Court.

Many of us would probably have had no objection to that procedure even if it ended there. But it does not end there. They say that not only should there be a judicial personage from the North presiding over the commission but that the trial judges from down here be entitled to attend at the commission. It is not necessary to say it but the accused would be entitled to attend at the commission. If the accused does not want to attend at the commission himself——

Or does not dare to.

Or does not dare, if Senator Yeats wants to continue making my speech for me.

If one wants to be realistic.

In those circumstances he can get his solicitor or counsel to attend or he can attend with his solicitor and counsel and with the Irish judges.

And be shot trying to escape.

What is the objection to that procedure?

Hear no evil, see no evil.

It does not even end there. If he decides to go to the North, he is guaranteed immunity in respect of any other matters for which he might be open to be charged in the North. Those are the provisions as regards the commission. What is the net objection to that which was voiced here by Senator Lenihan?

A bailsman is put into custody.

Yes, but he may have got bail here. There may have been delay about bringing on the trial here and he has a right, therefore, to get bail. He may have got bail and he has to hand himself into the custody of the administration in the North. That is the net objection to this. Let us look at this sensibly. Is it not quite clear that if there is a commission sitting in the North, that if a person who is on trial here in relation to an offence committed in the North, and if he is going to go into the North and attend before the commission, short of expecting the people in the North completely to surrender all of the political traditions which they have been insisting on, short of expecting them to recognise in a significant and even irrevocable way the right of members of the Irish Garda or the right of members of the Irish Army or the right of members of the Irish Judiciary to go into the North and take evidence there, is it not clear that short of expecting them to do that, there must be some technical arrangement whereby at least notionally or technically the accused person is going to be in the custody of the Northern administration? Looking at the matter realistically and sensibly, is not that all that is involved in this question of submitting to the custody of the North? An accused person need not do it if he does not want to. If he does, he is complying with what is obviously to my mind a technicality which is necessitated by political necessity in the North.

In any event, when the commission are sitting, they are sitting because the trial has commenced effectively down here. The whole thing is in the judicial process and once it is in the judicial process, the process before the trial has commenced, this famous citizen for whom Senator Lenihan's heart bleeds—the free man on bail—has surrendered his bail and has come before the court. He is no longer a free man on bail. Surely that is the reality of the procedure suggested in this Bill and recommended by the law commission with regard to the taking of evidence on commission in the North. It is easy to be divisive about this if anybody wants to be divisive. It is easy to be emotive about it. It is the kind of thing that is very easy to beat the drums and wave the flags about.

We have not done that.

Senator Lenihan may be more naïve than I think he is but I cannot remind him of the fact that he was not in a position to hear the discussion which took place here a short while ago. If he was he would know to what I am referring. If anyone wants to be divisive, it is easy to be divisive on that ground but if anybody wants to look at the matter realistically and coolly as was recommended by Senator Lenihan, surely we must recognise that political necessity if nothing else requires that there should be technical custody in the North when an accused person goes there. There are to be reciprocal arrangements as far as commissions here are concerned, as far as taking evidence here under the reciprocal measure going through the British Parliament at the moment. We are not giving anything away. In fact, it would be no exaggeration to say that by reason of this Bill we are getting an added jurisdiction that we have not had on a de facto basis since the establishment of the State. If we are to insist on looking at this Bill as a provocative measure, that was another of the phrases used by Senator Lenihan, then this can be done. But what is provocative about it? To whom is this Bill provocative?

The SDLP, no doubt.

We are not surrendering anything. This Bill poses a threat for certain people. It poses a threat for everyone who commits one of the offences scheduled in the Bill in the North of Ireland and it poses a threat for nobody else. Is it suggested that we are surrendering any right by extending our jurisdiction by agreement so as to give our courts and our judges and our general administration of justice authority to deal with what all of us would regard as crimes committed North of the Border? Where is there selling out to the British involved in that? Where is the pussy-footing with the British involved in that? We are saying in effect that if these people seek refuge here we are going to deal with them.

Business suspended at 6 p.m. and resumed at 7.30 p.m.

I should like to refer to a remark I made regarding Senator Eoin Ryan, attributing his attendance here to the Law Library being closed. I made the remark in the heat of interruptions and I should like to state quite clearly that I realise it was an unworthy remark. I withdraw it quite unambiguously and I also withdraw the implication that Senator Ryan fails to attend to his public duties here because of attendance at the Law Library. Such implication would be quite unwarranted and it is only fair to Senator Ryan that I should say that.

As regards the matter with which I was dealing when we adjourned for tea—the Sunningdale agreement— Senator Lenihan certainly gave me the impression in the course of his speech that he had read both the Sunningdale agreement, the communiqué or statement issued following the Sunningdale conference, and the law commission report as distinctly favouring the idea of an all-Ireland court. He referred to the method being proposed in this legislation of extra-territorial jurisdiction as being a kind of second best. I want now to set on record the facts as I see them in relation to the Sunningdale conference and in relation to the law commission report.

Paragraph 10 of the agreed communiqué following the Sunningdale conference makes it absolutely clear that there was concern, shared by all parties who took part in that conference, that persons committing crimes of violence should be brought to trial regardless of where the violence was committed. The same paragraph in the communiqué shows that different solutions were considered and discussed at the conference and the all-Ireland court suggestion was merely one of the proposals suggested as a possibility.

The extra-territorial jurisdiction with which we are concerned in this Bill was another. The communiqué recognised that whatever method was adopted there were going to be considerable legal complexities to be overcome and, because of that, it was agreed that a commission should be established and that the terms of reference of that commission should be to consider all the proposals discussed and considered at Sunningdale.

I do not think I have overstated the position but, in order to be quite accurate about it, I should like to quote from paragraph 10 of the communiqué. It says:

It was agreed by all parties that persons committing crimes of violence, however motivated, in any part of Ireland should be brought to trial irrespective of the part of Ireland in which they are located. The concern which large sections of the people of Northern Ireland felt about this problem was in particular forcefully expressed by the representatives of the Unionist and Alliance parties. The representatives of the Irish Government stated that they understood and fully shared this concern. Different ways of solving this problem were discussed; among them were the amendment of legislation operating in the two jurisdictions on extradition, the creation of a common law enforcement area in which an all-Ireland court would have jurisdiction and the extension of the jurisdiction of domestic courts so as to enable them to try offences committed outside the jurisdiction. It was agreed that problems of considerable legal complexity were involved, and that the British and Irish Governments would jointly set up a commission to consider all the proposals put forward at the conference and to recommend as a matter of extreme urgency the most effetcive means of dealing with those who commit these crimes.

That was what was agreed at Sunningdale. There was no question of an all-Ireland court being No. 1. I feel quite confident that from our point of view—the point of view of an Irish Government—the all-Ireland court is a solution which would immediately have recommended itself as a course which an Irish Government would like to adopt but that is a far cry from saying—I am not suggesting Senator Lenihan said this—an all-Ireland court was suggested as the best solution arising out of Sunningdale.

Following on the Sunningdale conference, the commission was established. It is not necessary to go into the personnel of the commission. They have been referred to already. They were eminent lawyers from both the North and the South. It was established and the members were given their terms of reference. In the introductory portion of the report of the Law Enforcement Commission the terms of reference are referred to; the terms of reference contained in letters of appointment dated the 21st December, 1973, were as follows:

At a conference held between the British and Irish Governments and parties involved in the Northern Ireland executive designate which met at Sunningdale on the 6th, 7th, 8th and 9th December, 1973, it was agreed that persons committing crimes of violence, however motivated, in any part of Ireland should be brought to trial irrespective of the part of Ireland in which they are located. Different ways of solving this problem were discussed. Among them was the amendment of legislation operating in the two jurisdictions on extradition, the creation of a common law enforcement area in which an all-Ireland court would have jurisdiction and the extension of the jurisdiction of domestic courts so as to enable them to try offences committed outside the jurisdiction.

There, in exactly the same terms as appeared in paragraph 10 of the Sunningdale communiqué, where the terms of reference given to these eminent lawyers who were invited to take part as members of this commission. It is clear from the report that the commission sat on a number of occasions, 12 days in all, and they analysed the problem facing them, within their terms of reference. On page 9, paragraph 1, the report states:

The problem to be solved is defined as being how most effectively, from a legal point of view, to bring to trial persons alleged to have committed crimes of violence, however, motivated, in any part of Ireland irrespective of the part of Ireland in which they are located. But, since, other fugitive accused persons are already dealt with under existing extradition legislation our real task was to examine the different methods of bringing to trial persons who are alleged to have committed crimes of violence in one jurisdiction in Ireland and who, being found in the other, claim that the offences with which it is sought to charge them are political offences or offences connected with political offences. We shall refer to such persons as "fugitive political offenders".

On page 11 of the report of the commission set out the different solutions they considered. These were: the all-Ireland court method, the extradition method, the extra-territorial jurisdiction method and the mixed courts method.

As regards these four methods, which were considered by the Law Commission, it is important for any cool consideration of this Bill to remember—this is demonstrated by the report—that two of the possible solutions were rejected by the commission. One of the methods which was not recommended by the commission was the all-Ireland courts method. The other method which was expressly stated as not being recommended by the commission was the mixed courts method.

As regards amending the extradition legislation the commission could not come to an agreement on it. Anyone reading the report will find that the Northern Ireland representatives on the commission were in favour of dealing with the matter by amending the extradition procedures while the southern Irish representatives were against that. The sum total was that agreement was not arrived at in regard to the extradition method. There was only one method recommended by the commission. That was the extra-territorial jurisdiction method, which is enshrined in this Bill.

It is true to say that, apart from other difficulties, the all-Ireland court method was not recommended because it did not hold out any hope of a practical immediate solution. That was being dealt with as a matter of immediate concern. It still remains a matter of immediate concern to people north and south of the Border.

On page 12, paragraph 9, the commission set out their reasons why they did not recommend the adoption of the all-Ireland court method. The last sentence states:

Accordingly, we do not recommend its adoption since it does not offer a practicable immediate solution to the problem.

They had referred to difficulties and delays which would be encountered by reason of the fact that it would require an amendment to our Constitution, it would require a referendum here, it would require also the setting up of a new institution for administration of justice and some agreed procedure for nominating the judges for such a court. The sum total of that was that they did not recommend it and made it quite clear in the report.

As regards extradition the Commission were unable to agree. They did, however, give in the report the case made for and against dealing with the matter by amending the extradition legislation. On the mixed courts method the commission states on page 26, paragraph 40:

We conclude that for the purposes of extra-territorial jurisdiction, mixed courts confer no legal or procedural advantages over purely domestic courts, and for that reason we do not recommend them.

On page 22, paragraph 32, the commission summarised their views in regard to the question of extra-territorial jurisdiction as follows:

While the extent of its effectiveness cannot be foreseen, the extra-territorial method could be introduced quickly and could help to solve the problem of bringing to trial those accused of politically motivated crimes of violence. We are agreed that there are no legal objections to its validity. Its efficacy could be greatly enhanced if by appropriate administrative measures witnesses could be induced to cross the Border to give evidence. Where this cannot be achieved, all would depend on the effectiveness of the procedure for taking evidence on commission in the place of the offence. So far as that is concerned, we recommend the procedure described in paragraph 22 (b).

I suggest that is the procedure which is enshrined in this Bill. All of us will agree, and I said this when I was commenting on Senator Lenihan's criticism on this Bill as being unworkable, that we cannot foresee the effectiveness of this legislation. Obviously, we cannot. The only way we can know for a fact whether the legislation will be effective and workable or not is by seeing it in operation, but it is significant that these eminent men who sat on the commission were able to say in their report that the procedure which the Minister is now recommending to the House could help to solve the problem of bringing to trial those accused of politically motivated crimes of violence.

On the general question of an all-Ireland court versus the proposal before the House, this was not spelled out in the commission report and I can think of few circumstances in which it could have been spelled out. Any reasonable observer of Irish politics, North and South, will recognise that there is obviously a good political reason why an all-Ireland court would be difficult of achievement in our circumstances. I do not think anyone will disagree with me when I say that one of the core causes of the ultimate breakdown of the Sunningdale arrangements was surely the resistance of a large section of the people in Northen Ireland even to the concept of a Council of Ireland. Given that situation, is it not clear that the resistance to the idea of an all-Ireland court would be much greater. Instead of dealing with matters of common economic concern and such like, an all-Ireland body would be given authority and jurisdiction by both parts of Ireland to deal with the administration of the criminal law in connection with crimes of violence in any part of Ireland.

Do we seriously think, knowing the resistance of the North to the idea of the Council of Ireland—even a limited Council of Ireland such as was proposed—that the idea of an all-Ireland court with the kind of authority, jurisdiction and powers which it would be necessary to give it to deal with terrorism, murder and other crimes of violence, would recommend itself and would be generally accepted? No doubt it would be accepted here. No doubt it would be the first option of the Government if it could be achieved. I have no doubt even that all parties in the State would have been recommending it to the people at a Constitutional referendum. However, this was a question of getting agreement North and South as to how to deal with the problem. When we are told that this legislation with all the safeguards enshrined in it now before the House is divisive and provocative, presumably from our point of view, can one imagine the reaction in the North to the other proposition?

The only other major criticism made by Senator Lenihan was against the timing of the Bill. This legislation is worth having and should be on our Statute Book, Sunningdale or no Sunningdale, because so long as murder, terrorism, bombing, knee-capping are rampant in any part of our country this Bill is needed and is not untimely. It remains urgent. I realise that in saying that someone is likely to say, if it is urgent now why it was not proceeded with before? That is a fair debating point but one has got to take account of the realities of the situation.

The law commission report was presented in April, 1974. It dealt with the matter which the Sunningdale negotiators had rightly referred to as having considerable legal complexities. Obviously, when the report was presented it required study and attention by the Minister and his Department and by the Government. When it was decided to accept the recommendations contained in the report very intricate legislation required to be drafted with extreme care. That was done.

After less than half a year the legislation was introduced in the Dáil. Time was given to the Opposition in the Dáil to study the structure, the details and the intricacies of the legislation because the legal complexities were recognised. The Dáil was then up against the Christmas Recess and immediately after the recess they were involved with the budget and financial business. None of this lessened the need for nor the urgency of this legislation. Faced with the situation where an urgent measure was lying on the stocks in the Dáil and could not be reached or taken, the Government decided to transfer it to this House for consideration. I think they moved sensibly. One might criticise them that they should have moved before. I do not know what validity there is or may be in that criticism but at least they have moved now and the legislation is before us. The legislation is needed and remains urgent. If the legislation is passed, it may enable a degree of peace and harmony to be restored to our fellow Irishmen in the North. On that basis, even if it were only on that basis, we as legislators in this part of the country should be endeavouring to get this legislation through. I hope we will do that.

I should like to thank Senator M.J. O'Higgins for his remarks. It was very generous of him to say what he said earlier. I apologise if the jocose remark I made was in any way offensive to him.

I am against this Bill for many reasons. I am against it because I think it is unconstitutional, because I believe it is inconsistent with many of the articles of the European Convention on Human Rights. I am against it because it deprives an accused person—quite apart from the Convention on Human Rights—of what are normally accepted to be his rights when he is being tried. I am against it because I believe that if it is ever passed it will prove to be unworkable. Finally, I am against it because I believe it is being and will be divisive and will affect the very valuable bipartisan approach which the parties in this part of the country have had to the problem of the North up to now.

While I am against this Bill, I want to make it clear that I will support any reasonable and responsible measure to punish and to discourage acts of violence. For the record I want to say —it should not be necessary for me to do so—that I unequivocally condemn and deplore the hideous acts of violence which have occurred in the North of Ireland during the last four or five years. I deplore the violence perpetrated by the Provisional IRA. I deplore the violence perpetrated by the sectarian assassins. I deplore the unjustified acts of violence by many members of the security forces.

In approaching this Bill we must look at the problem which it is trying to solve in perspective, in its proper context as a political problem, a political situation. We must look at this Bill in particular in the context that the measures proposed in its were part of a package deal in the Sunningdale Agreement. That agreement was an effort to meet the conflicting viewpoints of the people in the North of Ireland and their relationship with this part of the country. It must be remembered that the Sunningdale Agreement provided for power-sharing; it provided for a Council of Ireland, which had a recommendatory role on human rights, a consultative role on police authorities in the North and the South; it provided also for a commitment to end internment and for a commission, the effects of which we are dealing with here, to recommend the most effective means of dealing with violence in this country.

In the context of the Sunningdale package agreement, where it was expected that we would have a power-sharing executive and a Council of Ireland—which would have at least some influence over the police authorities—and where internment would have been ended, it is quite clear that a joint measure to end violence would be both necessary and acceptable. With none of the safeguards of the Sunningdale Agreement which could have been regarded as a new deal, as something which would give us the incentive to introduce measures of this kind, with neither the safeguards nor the incentive of this new deal, a Bill of this kind is unacceptable and unworkable and I find it genuinely impossible to understand the Government's motive in attempting to introduce it at this time. Fianna Fáil are in favour of reasonable and responsible measures to punish violence and to discourage it.

I should like to make a passing reference to one of the proposals which was discussed for dealing with this problem, that was the question of extradition. In reading the British newspapers, in particular, one would get the impression that we were being quite unreasonable, quite impossible in not agreeing automatically to extradition between the two parts of this country. Reading these papers one would be surprised to know, if one were not already aware of the fact, that the British have an Extradition Act of 1870, that the British have been extremely serious and sensitive about extradition for many years past. They have recognised and implemented the principle of extradition for many years past. In other words, they will not extradite anybody for a political offence. Nevertheless, for some extraordinary reason, they think we should do, at the drop of a hat, what they would not dream of doing. I merely mention, in passing, that the arguments put forward—I am not suggesting even in this House or in the country—which suggest that we are quite unreasonable in this respect are difficult to understand, having regard to what is the British attitude, from their own point of view in dealing with this question of extradition.

The proper way of dealing with this problem is by means of an all-Ireland court. With the necessary safeguards, this would be the ideal way of dealing with the problem. It is not merely Fianna Fáil who are saying that. I quote from The Irish Times of 22nd April, 1975, where Deputy FitzGerald, the Minister for Foreign Affairs, said:

Although the all-Ireland court was the preferred solution of the Government no one could have any illusion that such courts could be established unilaterally by the Government in control of one part of the island without the co-operation of the authorities in the other.

It is quite clear that although the Minister for Foreign Affairs touches on the problems he regards and apparently the Government regard an all-Ireland court as the preferred solution. Therefore, it is not merely some hair-brained idea Fianna Fáil have thought of; it is also the preferred solution of the Government. We think it is not only the proper solution but we think the difficulties envisaged in providing an all-Ireland court are not so difficut that they could not be overcome. It would require a constitutional amendment. We have had several referenda in the last few years which went through very quickly and without any difficulty. Of course, there is the difficulty that the North might not agree. One must remember that it is the North who are asking for action on violence; it is the North who have been pressing us for some years past to amend our laws on extradition; to do something about sending back fugitive offenders. They are the people who are putting the pressure on to solve this problem. If that is so then there should be no reason why they would not agree with what seems to us to be the ideal solution, what seems to the Government down here to be the preferred solution, and which would be the proper way to deal with this problem.

The Law Enforcement Commission did not, as has already been mentioned here today, reject the idea of an all-Ireland court. It is clear from their report that they considered it had considerable advantages, and it is only because it would have to have a referendum, that there would be delay, that they put it to one side. They said "if time had been a less important factor this would have been fully considered".

That may have been their state of mind at that time. It is quite clear from the words they use "if time had been a less important factor" that they would like to have gone fully into the question of an all-Ireland court but they thought they did not have time to do so. Now it seems that time was not such an important factor, and it is a great pity that the Law Enforcement Commission were not led to believe that time was so important, because if they had not felt obliged to rush a solution they might have come to the proper one.

The Commission's recommendations were made one year ago and the Government did nothing about the situation until last week. We have the situation where the Government suddenly erupts on this question of law enforcement. Why was there no action for one full year?

Senator O'Higgins has asked Fianna Fáil are they not concerned about the murders, the bombings, the burnings in the North. He has suggested to us that, if we do not let this Bill through immediately, we are in some way going to be responsible for not helping to put an end to these things, and that if we hesitate for even a second to let this Bill through we must accept some of the responsibility. Does Senator O'Higgins and the Government which he supports accept the responsibility for the murders, the bombings and the burnings that took place during the past year, because the kind of case that Senator O'Higgins made for the delay—he did his best—was not very convincing?

If we are dealing with a situation which must be dealt with immediately, a fire that must be put out instantly, what is the explanation for the delay of one full year? Why, on the other hand, was there such a sudden move in this direction by the Government? Why, in particular, should this move have taken place at the present time after we had a cease fire in the North? There was far more necessity for this Bill, for those who believe the Bill is worthwhile and a workable measure, before Christmas when the Provisional IRA were still in full spate. Now when there is a cease fire, when they are relatively quiet, we suddenly have the demand for this Bill. Is there any reason or explanation, first of all, for the delay; secondly, for the sudden urgency, and, thirdly, for bringing it in now when there is considerably less need for it than there might have been a few months ago?

It is difficult to understand some of the rather hysterical speeches that have been made by Government Ministers in the past week, with particular reference to the Minister for Posts and Telegraphs, talking about the urgency and the necessity for a Bill that was pigeon-holed for one full year.

So far in this debate—I do not mean in this House in particular, but the debate which has taken place in the last week or two—there has been little reasoned argument or real justification for this Bill. The only suggestion that has been made—instead of a case being made for the Bill, this suggestion was made, after the Bill had been thrown to the Seanad— that anybody who is against it is against it because he is sympathetic towards the Provos.

It is a well-known maxim in legal circles that if you have a poor case, you should abuse the judge, abuse the opponents, abuse anybody you can see in sight, and confuse the issue as much as possible. The amount of abuse is a fair measure of the poverty of a person's case. I do not take it very seriously when I hear these accusations made; it is a measure of the lack of real conviction of the Government in relation to this Bill.

Again, just for the record, I want to remind the House that, since the violence started in 1970, the only two effective measures that were taken against the IRA were the setting up of the Special Criminal Court in May, 1972, and the amendment of the Offences Against the State Act in December, 1972. The first provided for a court that could act without intimidation, which was happening up to then. The second provided for putting members of the Provisional IRA in jail for membership of the IRA and in other circumstances. Without these two actions it would have been impossible to prosecute successfully and imprison members of the IRA. This was made possible not by the present law and order Government, as they like to imagine themselves, but by the Fianna Fáil Government. Fianna Fáil made this effective action possible and Fianna Fáil took effective action under these two measures.

Dare I remind some of those on the other side that Fine Gael and the Labour Party opposed the second of these two very effective measures? The Minister who is here with us today opposed that Bill in a very long speech, although he eventually voted for it. Looking back on it now, I say both Fine Gael and the Labour Party, who opposed that Bill at great length, opposed it for no good reason, because having come into office they did nothing about it. They left it on the Statute Book. They are acting under it and they realise now—whether they have the generosity to say so or not— that it was a good measure, that it was a necessary measure and it is an effective measure.

The Minister for Posts and Telegraphs, who is leading the witch-hunt against Fianna Fáil and who now equates Fianna Fáil's opposition to this Bill as sympathy with the Provos, not only spoke against the Bill but voted against it. Did the Labour Party, in voting against that Bill, do so because of sympathy with the Provisional IRA? Did Fine Gael, who spoke against that Bill, do so because of sympathy with the Provisional IRA?

Was the inexplicable delay of the Government during the last year in bringing in this Bill because of sympathy with the Provisional IRA? I do not think any of these things was for that reason. I would like to remind members of Fine Gael and of the Labour Party that their actions invite that kind of explanation. If they think that kind of explanation is the one that should be put on Fianna Fáil's opposition to this Bill, if that is the kind of argument they want to use, then they should remember that exactly the same explanation and interpretation can be put on many of their actions during the last two years.

We should try to deal with this Bill on its merits, if it has any merits, because Fianna Fáil can stand over their record in dealing with subversive organisations—and I would like to remind the House that the IRA is not the only subversive organisation we have had in this country. If we did have a few dissidents in the past we dealt with them which is more, I think, than can be said by some of the dissidents in the Government camp.

I am against this Bill as I said earlier because I believe it is repugnant to the Constitution. It has been argued that this is not a matter for this House, that if it is repugnant in due course the Supreme Court will deal with the matter. That would not be correct because Article 15.4.1º of the Constitution says that Parliament shall not enact any measure which is repugnant to the Constitution. We have responsibility as well as the court not to enact an unconstitutional measure. I believe this is unconstitutional and, in due course, I have no doubt the Supreme Court will rule on it. The situation in regard to the repugnancy of this Bill arises under Articles 3 and 38. Article 3 says:

Pending the re-integration of the national territory, and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that Parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect.

As we all know, that means the Twenty-six Counties. It does not provide for jurisdiction outside the Twenty-six Counties or to acts done outside the State. The long Title of the Bill which is before us makes this fairly clear if it was necessary to elaborate on what is already in the Constitution. It talks of "an Act to extend the criminal law of the State to certain acts done in Northern Ireland, to provide for the admission of evidence obtained by the examination of witnesses in Northern Ireland at trials for offences in respect of these acts, to enable evidence to be obtained by the examination of witnesses in the State for trials in Northern Ireland for corresponding offences under the law of Northern Ireland in respect of acts done in the State, to reform the criminal law in other respects and to provide for related matters."

It is quite clear from the Long Title that it is doing precisely what Article 3 says it should not do and cannot do. This is a point I am not going to labour because I agree that the ultimate authority is the Supreme Court. It is a simple point but it is one which has far-reaching ramifications. The attempt to deal with offences in an area which the Constitution specifically states is not within the jurisdiction of the laws appears to me to be repugnant to the Constitution. Article 38.3.1º of the Constitution states:

Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.

If Article 3 has any meaning, then Article 38.3.1º must mean the effective administration of justice and the preservation of public peace and order in the area to which the laws enacted by the Oireachtas are confined. In my view it is quite clear that this Bill is an attempt to do something which the Constitution says may not be done.

Certain Acts have been referred to: for instance the Offences Against the Person Act, 1861 which was passed long before this Constitution came into being. We are dealing with Bills which are enacted, or where there was an attempt to enact them, since the Constitution was passed and consequently, a different situation arises. If one looks at the Long Title of the Offences Against the State Act, there is a situation where there is an attempt to extend the jurisdiction in the case of a Bill which is quite clearly dealing with this part of the country. The Long Title of the Offences Against the State Act says: "An Act to make provisions in relation to actions and conduct calculated to undermine public order and the authority of the State, and for that purpose to provide for the punishment of persons guilty of offences against the State"— not against some place outside the State—"to regulate and control in the public interest the formation of associations to establish special criminal courts in accordance with Article 38 of the Constitution and provide for the constitution powers, jurisdiction and procedure of such courts ..." Again, it seems quite clear that that Bill was never intended in any circumstances to deal with offences outside the State. Yet the Bill which is before us attempts to extend it and stretch it and misinterpret it in that way.

In dealing with this question of jurisdiction outside the State the Minister gave a number of examples today. These examples were certainly scraping the barrel. He gave the instance of the Foyle Fisheries but if that is the example he intends to rely upon if this Bill is brought before the Supreme Court I doubt very much if he will manage to persuade the Supreme Court that it is a precedent which could or should be acted upon to show that the Constitution provides for extra-territorial jurisdiction.

However, I am not going to go into this question of the repugnancy to the Constitution of this Bill because although I believe that Parliament has a duty, from this point of view, to express its opinion on this question, the ultimate authority is the Supreme Court and the Bill will be examined there and in my view it will be found to be repugnant to the Constitution.

I said I was opposed to this Bill because it was inconsistent with the European Convention on Human Rights, inconsistent with article 6 of the convention which gives the accused the right to defend himself in person or by means of legal assistance, which gives him the right to examine witnesses and to obtain the attendance of witnesses on his behalf and to do so on the same conditions as the prosecution. Of course, it is quite clear from this article that he has the right to be present at his trial, to be present at any part of that trial that is of any importance, to confront those who give evidence against him.

Under section 11 of this Bill he must be delivered into the custody of the Northern Ireland security forces although he is on bail in the State. This condition is fraught with such danger that, in my view, it no longer complies with article 6. This is not a question for examining the purely legal interpretation or the legal wording of the convention or how one should exactly interpret it. This is a matter for taking an example, for considering exactly what is going to be done and then deciding whether or not this genuinely complies with the convention or whether in practice it is going to depart so far from the conditions and provisions of the convention that it is no longer acceptable as being in compliance with it.

Let us take the case of a person who is accused of some crime in the North of Ireland and who is arrested in the State, probably by a garda who will more than likely be the only witness to appear before the Special Criminal Court here. The probability is that all the remaining witnesses will be examined in Northern Ireland, that the Special Criminal Court will have to travel to the North, that they will have to listen to the evidence being given, that they can put no questions except suggest to the commissioner questions that might be asked. It means, in effect, that the trial will be held in the North of Ireland because the only evidence given here, the only evidence given in the normal way, would more than likely be the evidence of the garda who arrested the accused down here.

Not only will the position be that the trial will, as I said, in effect be held in the North of Ireland, with the judges taking no direct part, but the probability is that the accused will not be there because he will decide it is unwise for him to risk being there. Can anybody really believe that in that kind of a situation, where most of the evidence will be given by commission, where the Special Criminal Court judges will play little or no part, where the accused himself will probably not be there—he may have counsel or solicitor present to ask questions but if he is not there he will not be in a position to instruct them or to suggest questions they should put to keep them in touch with the real facts of the case—there could be a satisfactory trial? That is the kind of situation we are more than likely to have in the trial of an accused as laid down by this Bill. I do not think anybody would really believe that that would be a satisfactory trial.

It is argued that if the accused is not there it is his own fault, that he could be there and that he should be there if he believes it is important to his trial. From the realistic point of view I ask you to put yourself in his place. Put yourself in the place of a person who is accused of possibly a very serious act of violence, bombing a public house or something like that. In that position would you go to the North and put yourself in the custody of the Northern Ireland security forces? Would you do it without considerable hesitation and is it not likely that in the end you would decide not to do so? If that is the position then the situation is that the State will not be complying with article 6 of the Convention on Human Rights.

One must remember, when I talk about the accused putting himself in the custody of the Northern Ireland security forces, the various investigations and reports that have been produced over the past few years—the Compton Report in 1971 on the police, the Gardiner Report on interrogation, the Amnesty International Report on interrogation in 1971—to remember these and to realise that at the present time the Government are prosecuting a case in Strasbourg at the Commission on Human Rights in relation to the behaviour of the security forces in the North of Ireland and making allegations of the most outlandish torture by these forces in the course of interrogation in relation to people that were kept in custody by them.

The question that must be considered is this. Would an accused person go to the North in the context of the behaviour of the security forces in the North over the last four or five years? Of course not all the security forces have behaved like this, but only a very small number of them. Most of them are perfectly decent policemen doing their job. But there are those who have behaved in a way which has been held up to condemnation in the various reports I have mentioned and held up to condemnation by the Government of this country. This is the risk the accused would take if he placed himself in the custody of the security forces in the North of Ireland.

Down here we are inclined to be a little bit blasé about this. We live in a different atmosphere. But anybody who has lived in the North, anybody who has seen what goes on in the North, anybody who realises, not only from reading reports but from hearing from friends and members of their own families and so on, what takes place, would not be surprised that a person who is in the position of having to deliver himself voluntarily into the custody of the security forces would be extremely reluctant to do so. In those circumstances not only is the accused justified in refusing to go to the North for his trial, but even if he thinks he is justified in doing so and decides not to do so, then he is being deprived of the protection and the rights that are provided in article 6 of the Convention on Human Rights. In these circumstances the trial could not be described as a fair trial, a satisfactory trial, or the kind of trial that we are accustomed to having in this country and which we would like to continue to have.

There is a further difficulty which the Special Criminal Court would have if they travel to the North of Ireland to be present when evidence is given to a commissioner. It is the difficulty in evaluating the evidence given by members of the security forces. Quite apart from the fact that they must have some doubts about the credibility of this evidence, they will not be in a position, because of their passive role, to question the witnesses or to satisfy themselves in any way as to their credibility. They must realise that civilian witnesses in these circumstances may be under duress. They may be under threat of detention. They may be in fear of interrogation. The court would be obliged to have some reservations about the evidence that would be put before them by members of the security forces. They would have to remember the Cobden Trust Report which dealt with bias in prosecutions in the North as between Nationalists and Unionists. They would realise that in so far as that takes place it would be contrary to article 14 of the European Convention on Human Rights.

The court would have to have some regard to the quality of the evidence that was given or was withheld in such cases as the McElhone case recently where the evidence was so unsatisfactory and so far removed from the norm that some thousands of people signed a protest about the miscarriage of justice.

All these reports, facts and records of discrimination of evidence which cannot be relied upon and were shown in the past to be unreliable could not give any grounds for confidence to the members of the Special Criminal Court in listening to evidence by members of the security forces in the North of Ireland. Yet this court will have to listen to that evidence and take it into consideration in deciding whether the accused is guilty.

In my view this puts the court in a very difficult situation. It makes it very difficult for them to evaluate the evidence in these circumstances and will make their position virtually impossible in this extraordinary trial which will take place almost certainly in the North of Ireland in circumstances where the judges will play little or no part.

Quite apart from the difficulties that the accused will have and quite apart from the fact that the accused will in many cases be deprived of some of his rights under the European Convention on Human Rights, the Special Criminal Court trying the case will find themselves in such a difficult and embarrassing situation that it will be virtually impossible for them to come to a satisfactory conclusion.

There is the other side of the coin as regards this Bill. It must be realised that there is a similar Bill going through the British Parliament. As a result of that Bill you will have the situation where the courts here will have to co-operate in taking evidence on commission for trial in the North of Ireland. We are going to have a situation where the courts and the Government will find themselves in the position that they will be asked to provide evidence for a trial in the North of Ireland over which they will have no control.

Having regard to the matters which I have already dealt with—the bias in prosecution, the pressure on witnesses, the unreliability of witnesses from the army and the security forces—can the courts down here really feel happy about co-operating with the Northern Ireland legal Institutions? Can they co-operate in receiving evidence on commission for trials that may well prove to be travesties of justice—just as much a travesty of justice as the McElhone case appears to have been a few weeks ago?

If subsequent to co-operating in providing that evidence it appears to the court and the judges here that justice has not been done, then they will have no control or redress over that lack of justice. They will have no means of undoing the injustice that has been done—an injustice for which they will feel that they are at least partly responsible. The effect of this kind of a situation, if the Bill goes through, on the public mind—of our judges travelling to the North to listen to witnesses there and of our courts providing facilities for taking evidence which will be used in trials in the North—and the effect on the judicial system down here, could be very serious. The courts in this country have the respect of the people. Even the Provisional IRA have a certain respect for the Special Criminal Court in spite of the fact that they disapprove of what it is doing. They have this respect because the court is dealing with what is being done in this State regarding offences. If the courts here begin to take evidence for trials that will take place in the North, if our judges are constantly travelling up and down to the North, and in both respects are co-operating with the Northern Ireland security forces and legal institutions which have been shown to be unjust in many respects, I foresee a change of attitude in the minds of the public in the Twenty-six Counties. It is a change of attitude which might well undermine the respect which the public now have for the courts here. If this takes place it will be a very high price to pay for the very doubtful advantages of this Bill. I believe this Bill to be unworkable. If I am right, my fears about these trials will have no foundation because they will not take place. I believe it is unworkable because the methods proposed are so complicated that they will prove difficult and embarrassing for the judges who are expected to implement them and will be so unpopular with the public and so demonstrably unjust, that the Bill will never be put into operation. Even if a few half-hearted attempts are made to operate it, it will quickly wither away and we will hear no more about it.

My belief that this is what will happen is reinforced by a similar experiment announced by the Government a considerable time ago. The usual fanfare of trumpets heralded the introduction of the Adaptation Order, 1973, to the Offences against the Person Act, 1861. This Act, with the help of the order passed by the Government, enabled people to be tried here for murder committed outside the State. It was introduced to help solve the problem of fugitive offenders and people who had committed acts of murder in the North and then coming here to evade arrests. That was the last we heard of it in well over a year ago. Despite the flourish with which it was introduced it has never been heard of since. Nobody has been prosecuted under it and I doubt if anybody ever will. It was a legal gimmick introduced by the Coalition; it was unworkable and I hope this Bill will meet the same fate.

One of my reasons for not being in favour of this Bill is because it is divisive. Not only would it provide division between the Government and the Opposition, but it is quite clear that it is already causing trouble within the Government's own ranks and supporters. The united front—the Government like to refer to it as the bi-partisan approach—that has existed in this country between the last Government and the present Government, the Opposition of the time, was very valuable and it has existed up to now. When I say it is unlikely to continue into the future I am not making a threat, I am merely stating a fact. If the Government persist in a Bill which they know will be opposed by the Opposition they are, by persisting with the Bill, ending the bi-partisan approach and introducing division between the Government and the Opposition on the approach to the position in the North of Ireland.

It will be divisive not merely because of the measures provided in this Bill for dealing with accused persons, but because it undermines the whole approach to the problem in the North. It is not merely a question of bringing an accused to court. The way the Bill approaches the problem, the violence it does to the Constitution and to our legal methods and practices, what kind of court should try people who commit acts of violence, what jurisdiction it should have, who should appoint the court, who should prosecute, what kind of security forces should we have, what kind of justice will be administered—these are the fundamental questions in this Bill, and are part of the background to this Bill. To persist in this is not persisting merely in a simple effort to bring to justice people who commit acts of violence. The Members who support this Bill would like to look at it in a simple way and say that that is all it did. But it is far more fundamental in its approach to and in its effect on the serious political questions that underlie the whole situation in the North. Consequently it is unfortunately true that if the Government persist in this it will cause division and undermine the bipartisan approach that has existed up to now.

If the Government attempt to submerge the fundamental problems which exist in Northern Ireland in a superficial attempt to bring suspects before a court, regardless of the circumstances, regardless of whether justice is done, then the end result will be far worse than the begining. Not only will very little be effected by the Bill, but respect for the courts in this part of the country will very likely be undermined. In approaching this Bill let us do all in our power to prevent acts of violence in the North and in this part of the country and punish those, no matter who they may be, who commit acts of violence. But let us be spared from the kind of Coalition gimmickry of which this Bill is a typical example.

The question has been asked—why did it take so long to get this sort of legislation before the House? Yet, in approaching the matter speakers on the opposite side have given a long list of reasons why this legislation should be more carefully considered and further postponed. All this is evidence that the issues at stake are very important, very involved and in some senses complicated. I have listened to Senator Ryan. I welcome the change in tone and the change in attitude since the day the Bill was introduced in the House. I welcome the change from attacking Government and the people on this side of the House as traitors to the old ideals and that type of argument. I welcome the shift in the constitutional argument here today and while it would take a good deal of that sort of argument to convince me that the legislation is wrong or that any better ideas are held by the people on the other side of the House, nevertheless, I think it is a welcome trend.

Having listened to Senator Ryan, I feel that he has woven a great web with a very fine mesh of cobwebs around and about the issue involved in this. I am not a legal man and I prefer to see this from the layman's point of view. Perhaps the Minister would better appreciate the sort of arguments that have been made by Senator Ryan. Certainly, I would prefer to look at it from the other point of view. I am inclined to wipe those cobwebs away from my eyes and try to get a clear look at the issues involved. Senator Ryan talked about the new deal, the Sunningdale Agreement. This is all in the past but still it is worthy of comment here. It is worth remembering that the Sunningdale Agreement failed but there was a feature of the Sunningdale Agreement that we all welcomed. We thought that in accepting it we had accepted something less than what was desirable and ideal—most of us would say a good deal less. Nevertheless, it failed because what we got was more than the other party were willing to give.

We should remember also that the very people who have most to gain by our failure to enact the sort of legislation that we have here today were the people who made a contribution to the breaking down of the Sunningdale Agreement. If the gunmen on the Nationalist side had laid down their arms at that stage and accepted that we had made significant progress, a move in the right direction, I believe that moderate Unionist opinion might have been in a much better position to hold out and defend Sunningdale and defend the sort of constitutionality that had begun to enter into the situation in the North of Ireland.

When I hear people produce fine legal arguments against this Bill without at the same time producing any solution to the problem that we are trying to solve, I get the impression that deep down they still want to make it easier for the people this Bill seeks to bring to justice. I do not accept that there is no sympathy on the other side of the House for the Provisional IRA point of view. I am not accusing the people on the front bench opposite, in spite of what they said in the previous discussion. Nevertheless, anybody reading the local press a couple of months ago when we had the Portlaoise hunger strike and seeing what the rank and file of Fianna Fáil representatives and country councillors were saying when they knocked each other down in every council chamber in Ireland to jump to the defence of subversives and to condemn the Government and make it more difficult for them to maintain law and order in this State, would not believe the sort of arguments that are being produced here today and the sort of denials that we hear of any sympathy with those whom this Bill seeks to bring to justice.

On this question of the new deal we got at Sunningdale, as I pointed out and we all realise, it failed. That idea of an all-Ireland court is most acceptable to me. I would say that it is most acceptable to all of us here and would be most acceptable to the majority of people in this part of the country. Why? Because it is another step on the road towards the unity which we all desire. It is one of the institutions that we might get if we had a united Ireland. It is a step in that direction and, as such, we would all welcome it.

But do we really expect the Loyalists in Ulster—that one million people who have vetoed and have the power to veto and are in a position to veto the sort of solutions that we would like to see brought about to our problems—not to see in an all-Ireland court a step towards a united Ireland? No matter how dearly we long for such unity, or how much we would like to see this first institution of a united Ireland brought into being, we cannot expect the Unionists in the North of Ireland to be so blind as not to see that this, in fact, is the beginning of their undoing if they believe in Unionism. Therefore, we must accept that if we could not sell Sunningdale, if we could not sell a Council of Ireland, we cannot as was already pointed out here, sell an all-Ireland court. We must accept that, for the moment, an all-Ireland court is not on the cards as a solution to this problem.

Senator Ryan did say, of course, that these difficulties could be overcome. That is very easy to say and that short sentence may satisfy a small number of people who are not prepared to think about the difficulties. But to say that the problems and difficulties arising out of the establishment of an all-Ireland court could be overcome is very simple talk and meant for very simple people. The question of an all-Ireland court at the moment must be ruled out and we have to face the fact of what the situation in Northern Ireland is at the moment. We hear a lot of talk about the police and the courts of justice in Northern Ireland, the regime and the establishment there. I would agree with much of what has been said. I am not one of these who trust entirely in British justice as we have seen it operating in the Six Counties. I do not pretend that I believe in the integrity of all the institutions of the State which existed there. Nevertheless, we claim in our Constitution, contradictory though it may be, jurisdiction over the people of Northern Ireland. We dearly long for unity with the people of Northern Ireland. The people of Northern Ireland are those whom we would like to see as our brothers in an all-Ireland partnership. Of all the people in Europe they are the people with whom we have most in common and with whom we would like to identify. We have not considered their condition in our debate here.

The average man in Northern Ireland is not a gunman, not an extreme Unionist, or an extreme Republican and, therefore, it is his position that we, through this legislation seek to make secure. It is his position that we must consider more than the attitude of the police, the attitude of the Ministry of Justice or the attitude of anybody else there. We seek to secure justice for him.

While mention of the European Convention on Human Rights is very important it is the question of the rights of the individual in Northern Ireland which we are concerned about in this legislation—his right to live the kind of life he wishes, to go about his business, to worship in whatever manner and in any place he wishes, the right to employment and all the other rights which we hold sacred. If there are people who would deny him his democratic rights we should come to grips with them.

The legislation which the Government are introducing is not one-sided. It could be used to bring to justice the Dublin, Monaghan and Belturbet bombers. It would affect people of either extreme Unionist or Republican beliefs. It would be used to bring to justice those people who perpetrate violent crimes and who convince the courts they were done from political motives. Therefore, the idea that the legislation is one-sided is wrong. If the man in the street were asked what he thought of this legislation his first reaction would be: "I do not like the idea." However, if the facts are explained to him he will reconsider his first reaction. When he has thought about it he will come to the conclusion that something must be done. If the legislation which the Government are introducing is considered unconstitutional we should have a very careful look at the Constitution and consider changing that rather than this Bill.

Senator Eoin Ryan spoke a good deal about the question of the safety of the prisoner who is handed over to the authorities in the Six Counties in order to give evidence. The Senator expressed great concern for the prisoner's point of view. The prisoner does not have to return if he does not wish. In these circumstances we are not dealing with the ordinary timid individual who has never had any contact with the law. Let us consider the sort of crime of which these people are accused. We will find that the people we are dealing with will have considered all the possibilities and will consider they are in very safe hands. The men who can shoot a father in the presence of his family, who can knee-cap four or five people, who can shoot an innocent bystander just because he lives in a Unionist or Nationalist area in Belfast, will not be too frightened of being handed over to custody in the knowledge that the press and all relevant authorities are looking on. There is no cause to be concerned for their safety. That is not to say that I uphold the integrity of all the institutions of the State in Northern Ireland. I do not think these people would be half as much concerned about their own positions in these circumstances as is Senator Ryan.

It is good to tease out the technicalities of this legislation here. We are right to ask if when this legislation is passed it will be in accordance with our Constitution. Anybody who disagrees with bringing legislation of this kind before the House has an obligation to say what the alternatives are. We want to associate ourselves with the vast majority of people in Northern Ireland who do not believe in violence. We want to find out what they think of a situation in which a person can commit a bank robbery, or an assassination and then cross a point on a map and declare himself immune from all prosecution because his crime was politically motivated. Will the ordinary man in Northern Ireland be drawn closer to the people of the Republic if he knows that his security will not be threatened by anyone who can flee to the Republic and claim immunity or are we to fail to protect the people with whom we want unity?

Having listened to the legal arguments, I am still convinced that the measures which the Minister has introduced are the best which we can hope for in the present circumstances. There may be dangers but in my opinion they are worth risking compared with the damage being done to the relationship between the people of the Six Counties and the people of the Twenty-six Counties by the fact that a person can commit a crime in Northern Ireland and then walk across the Border to freedom while we do not appear to be concerned. We need not expect everybody to realise the technical problems. We need not expect everybody in the Six Counties to know the details of the European Convention on Human Rights. They see a murderer going free but we have an obligation to protect and safeguard their rights.

This is one of the most difficult Bills to come before the House for some years.

Hear, hear.

It cannot be divorced from the political context, either here or in Northern Ireland. There is a real danger that Senators contributing to the debate may be either misunderstood or misconstrued in their contributions. I hope that Senator McCartin will understand when legal points and constitutional issues are raised on this Bill that it is not with a deep motive, as he suggested, either to protect or to be in collaboration with those who perpetrate violent acts in the country. It is the responsibility of Senators in debating a Bill of this sort to raise legal and constitutional issues if they are evident on the face of the Bill.

I welcome the Minister's tone and content in introducing the Bill. The Minister made it possible for independent Senators such as myself to make it clear that, although we might not endorse the machinery which he is proposing to solve the problem, we certainly recognise the problem, do not sympathise with or have any deep-down ambivalence regarding those who perpetrate violence in this island and who are able to escape the jurisdiction of the courts of this island under the present system.

I welcome the opportunity he has offered to Senators such as myself, who have serious difficulty in accepting the proposals in this Bill, to make clear that on the fundamental issue we have an acute awareness of the problem and acute sympathy for those who are the victims of acts of violence carried out for political motives in this country. It is our deep concern that the problem be resolved.

Having said that, I turn to a consideration of this Bill. As Senators have emphasised, it is the last vestige of an elaborate political solution to the problems of this island which were hammered out in the agreement at Sunningdale from 6th to 9th December, 1973. The Law Enforcement Commission which was established at that time viewed its task as part of an overall package which included the existence of a power-sharing Executive in Northern Ireland, which included proposals for a Council of Ireland, which included proposals to consider the possibility of implementing into domestic law the Convention on Human Rights and Fundamental Freedoms and which included proposals for a common police authority. Thus it was part of an overall, delicate, worked-out political package and I think it would be most unreal in this House if we divorced any consideration of this Bill from the context in which it was generated.

Therefore, we are faced in this House in April, 1975, with a two-fold task. First of all, to determine whether it is valid to consider the question of law enforcement in isolation from that overall package, and, secondly, to determine whether this specific proposal contained in the Bill before us is a desirable and workable way of solving the problem which I certainly acknowledge exists and which, I think every Senator in this House acknowledges, in a very realistic way, to exist. Given these two basic questions, it is easier to consider the second one first and then to relate that second one, the consideration of the actual proposals, the actual machinery proposed by the Minister on behalf of the Government, and then to relate the question of the acceptability of those proposals to the general consideration of whether, in fact, it is politically wise to isolate this law enforcement issue from the broader context and in particular from the question of the operation of the rule of law in this island and the question of the protection of human rights.

I welcome the attitude of the Minister in introducing this Bill and I welcome the way in which he has made it possible for Senators to express agreement and concern on the nature of the problem without having necessarily, in order to justify themselves, to agree with his solution. I would accept the problem as defined in paragraph 1, chapter 1 of the Law Enforcement Commission's Report, where it is stated:

The problem to be solved is defined as being how most effectively, from the legal point of view, to bring to trial persons alleged to have committed crimes of violence, however motivated, in any part of Ireland, irrespective of the part of Ireland in which they are located. But, since other fugitive accused persons are already dealt with under existing extradition legislation our real task was to examine the different methods of bringing to trial persons who are alleged to have committed crimes of violence in one jurisdiction in Ireland and who, being found in the other, claim that the offences with which it is sought to charge them, are political offences or offences connected with political offences. We shall refer to such persons as "fugitive political offenders".

It is this problem that the Bill tries to resolve, and I want to consider whether the method chosen is first of all constitutional and, secondly, appropriate for that task. It may be necessary to preface an examination of the constitutionality of the Bill with a short explanatory memorandum of my own in view of some of the comments which have been made in this debate. I would agree with Senator Ryan that there is an obligation and a responsibility on the Members of this House not to pass a Bill into law which is deemed to be unconstitutional on its face. If, on the other hand, the argument is a rather tenuous one as to whether or not a Bill is constitutional, then I would be happy to have the Bill passed into law and then challenged ultimately by an individual seeking a declaration that a particular section of the Bill is unconstitutional. Alternatively, there may be a reference to the Supreme Court under Article 26 by the President before the Bill is signed. But where it appears, on the face of it, that there is a serious constitutional defect, then I think there is a responsibility and an obligation on Senators to make this very clear in a Second Reading speech and to be prepared to oppose the Bill on that ground if the constitutional defect is sufficiently serious.

I should like to refer in this context to what I consider to be a key proposal in this Bill which was not considered by and did not form part of the recommendations of the Law Enforcement Commission. I may say, as a practising barrister, that I find this reassuring because it would be a daunting task to argue against the constitutionality of proposals of a Law Enforcement Commission which included two Supreme Court judges and another member who has since become a High Court judge in this jurisdiction. So I emphasise that the matter I wish to refer to was not considered at all by the Law Enforcement Commission and yet it is a key proposal in this Bill, namely, that the jurisdiction over extra-territorial offences, as defined in sections 2 and 3 of this Bill, would be exercised exclusively by the Special Criminal Court. The Explanatory Memorandum to this Bill, in commenting on section 11, states at paragraph 24:

This section introduces a procedure by which in certain circumstances courts in the State trying extra-territorial offences committed in Northern Ireland (offences under section 2), or offences under section 3 of escaping from custody in Northern Ireland, may seek the assistance of the High Court in Northern Ireland to obtain evidence there for use at the trial. With a very few exceptions all the evidence in criminal trials in the State must be given orally at the trial. Trials for the offences in question will in all cases necessitate the proof of things done in Northern Ireland, but there is no power to compel a witness to come from there to give evidence in the State. To meet this difficulty section 11 provides that a court trying an offence under section 2 or 3 (including an offence committed in the State ancillary to a principal offence committed in Northern Ireland) may issue a letter of request to the Lord Chief Justice of Northern Ireland for the taking of the requisite evidence in Northern Ireland. The same power will be available to a court hearing an appeal from the court of trial. The evidence would be taken by a judge of the High Court in Northern Ireland designated by the Lord Chief Justice, and the judge or judges of the court of trial or appellate court would be present at the taking of the evidence. The procedure will be available only where the case is tried by a special criminal court established under Article 38.3.1º of the Constitution. The accused will have the right to be present and legally represented at the taking of the evidence.

Indeed, reading section 11 of the Bill, and nothing the absence of reference to any other court, it is clear that it is the intention of the Government that all the offences set out in sections 2 and 3 of this Bill will be tried before a Special Court established under Article 38 of the Constitution which means in practical terms, the Special Criminal Court established by a declaration of the Government in May, 1972.

If one turns to the provisions of Article 38 of the Constitution it is stated in paragraph 3.1º:

Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.

This is the only constitutional ground on which a Special Court may be established. The only jurisdiction which may be granted constitutionally to a Special Court under Article 38 follows upon a Government declaration that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. This provision must be read together with Article 3 of the Constitution that:

Pending the reintegration of the national territory, and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that Parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect.

It is clear that the reference to securing the effective administration of justice and the preservation of public peace and order relates and can only relate to the position in the Twenty-six Counties. I would ask the Minister to deal specifically with this point in his reply and to indicate whether he has taken legal advice on the question. I would submit that the provisions of Article 38, section 3, prevent the Special Criminal Court established by law from exercising jurisdiction over offences committed outside the territory. This is a different argument from attacking the concept of extra-territoriality itself.

I am sorry to interrupt a most excellent long sentence but it is now time for the adjournment to be moved.

Debate adjourned.
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